§ 10.3 p.m.
§ Mr. Graham Page (Crosby)
I beg to move,That this House approves the resolution of the Select Committee on Statutory Instruments regarding the Weights and Measures (Equivalents for Dealing with Drugs) Regulations 1964, contained in their Second Report, regrets that the Minister of Health and the Secretary of State for Scotland have together made unexpected use of the powers conferred on them by statute, and calls On them to withdraw the present Regulations and to substitute others.The Resolution to which the Motion refers appears in the Second Report of the Select Committee on Statutory Instruments in which, in that Resolution, it is reported:That it is the opinion of this Committee that the special attention of the House should be drawn to the… Regulations…on the grounds that it appears to make unexpected use of the powers conferred by the Statute under which it is made.The Weights and Measures (Equivalents for Dealing with Drugs) Regulations 1964, were made by the Minister of Health and the Secretary of State for Scotland under Section 10(7) of the Weights and Measures Act, 1963, and the power under that Section is exercisable by Statutory Instrument subject to annulment by a Resolution of either House of Parliament.
As the House knows, a Prayer to annul a Statutory Instrument has to be debated in this House within 40 days of the Instrument being laid before the House. That is under Section 5 of the Statutory Instruments Act, 1946. At the same time, there is Standing Order No. 100 under which no debate on a Prayer should either start or continue after 11.30 p.m. It will be readily seen that, by the combined operation of what I will call the statutory 40-day rule and the procedural 11.30 rule, time may not be found to debate a Prayer before the period of 40 days has expired. That happened in the case of a Prayer against this Statutory Instrument under the Weights and Measures Act.
This sort of situation was foreseen when Standing Order No. 100 was made. When it was being proposed as a Sessional Order, in 1954, the then Leader of the House, Mr. Harry Crookshank, 1018 as he was then, referred to this very important point. I will not quote from column 2170 of HANSARD for 31st March, 1954, but he drew attention to this very difficulty—that a Prayer against a Statutory Instrument might be squeezed out by the combination of these two rules. But he also referred to the wording of the Standing Order, which said:Except in such case as the House may otherwise order.When that sort of situation arises, the House may order, and could have been invited to do so in this case, the suspension of the Standing Order so that the Prayer may be debated before the 40 days have expired. That course was not taken and the only way in which the House can now debate the subject is on a Motion of this sort.
It is my duty to endeavour to satisfy the House that the Prayer was, and the Motion is, one for which time ought properly to be found, that there is justification for the debate. As the House knows, all Statutory Instruments are considered by the Select Committee on Statutory Instruments. They are considered not on their merits, but the Committee is charged with the duty of considering whether a Statutory Instrument is, for example, a charge on public funds, or a preclusion of challenge by the courts or has retrospective effect and whether those things are authorised by the Statute under which the Minister purports to make his Order. In particular, the Committee is charged with seeing whether a Statutory Instrument appears to make some unusual or unexpected use of the statutory power vested in the Minister to legislate.
If a Minister has transgressed, the Select Committee draws the attention of the House to the fact. The Select Committee does not lightly report Statutory Instruments to the House. With the help of your counsel, Mr. Speaker, if it is dissatisfied with a Statutory Instrument the Select Committee calls for an explanation from the Department concerned, and may even call for witnesses from that Department. Only after it had thoroughly considered the Statutory Instrument and is still dissatisfied would it report to the House.
After that, the Committee can do no more, and it is up to an individual hon. 1019 Member to pray against the Statutory Instrument. It has become traditional that a Prayer by an individual Member, based on a Report from the Select Committee on Statutory Instruments, has been found time for debate in the House. That, surely, is right, because it is of considerable constitutional importance when the Select Committee reports an Instrument to the House. For convenience, Parliament delegates legislative powers to Ministers, but it has appointed the Select Committee as a watchdog over those powers to see that they are not abused; and it is no use having a watchdog if it is ignored when it barks.
Recently, time was found in this way for a Prayer against a Statutory Instrument which had been reported. That was the Building Standards (Scotland) Regulations. That Instrument was reported on 4th February this year as being an unexpected use of the powers delegated to a Minister, and it was debated in the House on 10th February. I refer to those Regulations only because they provide a precedent which, I think, should guide the House on the Regulations mentioned in this Motion. Those Regulations required persons to obey certain British standards and codes of practice. They defined those standards and codes of practice as being those which were already published and also those which were to be published from time to time and any amendments of the existing Regulations.
The effect of that was that the British Standards Institution could rewrite part of the Statutory Instrument which the Minister had made, without laying an Instrument before the House, and merely by publishing it in some document issued by that body. Clearly, that was a delegation of the Minister's powers of legislation, which is one thing Parliament does not allow a Minister to do. I am glad that on that occasion my right hon. Friend the Secretary of State for Scotland recognised the error and undertook to bring in an amending regulation.
However, at that moment he was joining my right hon. Friend the Minister of Health to make exactly the same constitutional error in this Statutory Instrument, The Weights and Measures (Equi- 1020 valents For Dealings With Drugs) Regulations, 1964. The purpose of these Regulations is twofold. The first is to prescribe for drugs how many milligrams there are to the grain. Hon. Members will find that in Regulation 2. I understand that this has become desirable, and perhaps even necessary, by reason of the fact that the 63rd edition of the basic reference books, the British Pharmacopoeia and the British Pharmaceutical Codex, have for the first time set out the standards for drugs in the metric system instead of expressing them in imperial units, as they had been previously expressed.
The second purpose of the Regulations is to require manufacturers or wholesalers as from 1st August, 1965, and retail dealers as from 1st February, 1966, who sell certain drugs in cachets, capsules, injections, lozenges, suppositories or tablets pursuant to an order expressed in grains to carry out that order in the equivalent metric unit. So far, so good.
But to what drugs will the Regulations apply? The drugs in respect of which the dealer is bound by these Regulations to dispense in metric units are those for which a monograph exists in the 63rd edition of the British Pharmacopoeia or the British Pharmaceutical Codex,or in any amendment or new edition thereofwhich means that if new editions appear in future they will bind anybody who has to deal with drugs to these methods. It is the wordsor in any amendment or new edition thereofwhich are constitutionally objectionable.
I do not wish to detract from the immense value of these books—the British Pharmacopoeia and the British Pharmaceutical Codex—to the medical profession. In these books are set out the monographs for several hundred drugs. Each monograph is really a short chapter, headed with the name of the drug, followed by the chemical formula and a statement of the standards, properties and ingredients of the drug, and so on. If a doctor prescribes a drug which is mentioned in these books, the chemist must make up that prescription in accordance with the standards set out in the monograph. If a retail chemist 1021 orders from a wholesaler drug X, which is in the British Pharmacopoeia, the wholesaler must supply it in accordance with the quality and ingredients set out for that drug in the Pharmacopoeia.
The Regulations provide that if, for example, a doctor prescribes that the drug shall be made into pills of so many grains, the chemist has to make up the prescription, translating it into milligrammes, in accordance with the Regulations and by reference to the Schedule to those Regulations. There can be no objection in the case of drugs which already have a monograph; in their case it is legislation by reference to a specific document which is already in existence. But in the case of drugs which may in future be introduced into the Pharmacopoeia or Codex by an amendment or some further edition of either of those books, the Minister of Health and the Secretary of State for Scotland are delegating their powers of legislation either to the General Medical Council or the British Pharmaceutical Society, which issue these books.
They are very fine bodies, but they are not bodies to which Parliament has delegated power to legislate. I understand that editions of these books are published every five years, and that in the intervening period many amendments are issued, from time to time. It may be said that it will be inconvenient for the Ministers to have to make new regulations every time a new drug is discovered or is put on the market. It may be inconvenient, but that is the law as it stands, and the inconvenience of the existing law is no excuse for breaking it. The General Medical Council and the British Pharmaceutical Society may be very eminent bodies, and proper bodies to decide what drugs should be put on the market and how they should be prescribed, but Parliament has not given them power to legislate and the Minister cannot do so in place of Parliament.
My right hon. Friend may say that Regulations of this sort have been made previously. Perhaps it may be considered that a precedent is to be found in the Regulations made in 1962, when the drugs to which those Regulations applied were those which were included in the British National Formulary for the time being in force. I think that that would be a bad precedent, and that 1022 those Regulations were just as invalid as are the Regulations that we are discussing tonight—and two wrongs do not make a right.
I also hope that my right hon. Friend will not quote as a precedent the Regulations referring to medical practitioners and medical premises on the register from time to time. Those Regulations are in no way analogous to the present ones. In that case the subject brings himself within the Regulations by registering his premises. That is quite different from an entirely outside body deciding what shall be an offence. I submit that that is the right way to put the position, looking at it from the angle of the criminal law. The Regulations create criminal offences. We are not just discussing a constitutional exercise tonight. It has some greater importance than the merely academic.
Under Section 52(2) of the Weights and Measures Act, 1963, the penalty for breach of these Regulations is £100 fine and for a second offence £250 fine or imprisonment not exceeding three months, or both fine and imprisonment. Under the Regulations it will be an offence to supply any drug which is already named in these two books otherwise than by reference to milligrams, but it will also be an offence to supply any drug which may be named in future in these books without any authority of a Statutory Instrument coming before the House other than by milligrams.
This is the creation of a new offence without it coming before the House and without the intervention of any responsible Minister. The British Pharmaceutical Codex is not even available in the Library of this House for hon. Members to see. The British Pharmacopoeia is available, but I have not been able to find the Codex. What happens if the British Pharmacopoeia does not agree with the British Pharmaceutical Codex? One is produced by the General Medical Council and the other by the British Pharmaceutical Society.
There are, of course, many cases in which the House would like to legislate in advance for new knowledge which may be found in medical practice and relying on experienced experts on the subject without necessarily bringing it back to the House to vet every time. There may be such cases. With rapid 1023 scientific progress these occasions are perhaps likely to occur more and more frequently. It should not be difficult to devise a procedure whereby in such cases the particular body concerned, such as the General Medical Council or the British Standards Institute, would in some way certify to the Minister that there had been proper consultations and publications and the Minister could so certify to the House, but that is not our procedure at the moment.
Until some such convenient procedure as that is part of our law a Regulation such as is before the House tonight in this Motion cannot stand, and I ask the House to require its withdrawal.
§ 10.24 p.m.
§ Mr. Eric Fletcher (Islington, East)
I support this Motion.
The case for the Motion has been so admirably stated by the hon. Member for Crosby (Mr. Graham Page) that all I need to do is to add a few words in support. There are two separate questions involved in the Motion: first the merits of the matter, and, secondly, the procedure. As the hon. Member observed, this is not a Prayer in the ordinary sense. It is a specific Motion of a rather novel and, I think, unprecedented kind. I therefore first say a word about the procedure which has necessitated this Motion instead of a Prayer appearing on the Order Paper for tonight.
The House has always been very jealous of the exercise by Ministers of the Crown of their powers of delegated legislation. For that reason, the Select Committee on Statutory Instruments was set up to examine and scrutinise every Statutory Instrument and make a report to the House as to whether they appear to be satisfactory, or whether there is any special reason which require the Select Committee to bring them to the notice of the House.
This Statutory Instrument—the Weights and Measures (Equivalents for Dealings with Drugs) Regulations 1964—was considered by the Select Committee. The Select Committee took the view that it made an unexpected, which means an unauthorised, use of the power conferred by the Statute and that therefore it was the duty of the Select Com- 1024 mittee to report the matter to the House so that the House might take the appropriate course.
Most unfortunately, the House did not have an opportunity of considering within the allotted 40 days the Prayer which the hon. Member for Crosby and other hon. Members tabled following the Report of the Select Committee. I should explain that under the Statutory Instruments Act, 1946, there are 40 sitting days, which includes weekends when the House is normally sitting, within which any Member may pray against a Statutory Instrument. Some Prayers arise because Members are dissatisfied with the merits of a Statutory Instrument. Other Prayers arise because the Select Committee has drawn attention to some improprietry or irregularity in the Statutory Instrument.
When that course occurs, there is a natural abbreviation of the 40 days which are available, for this reason. The Select Committee meets once a fortnight. If it feels that any Statutory Instrument requires consideration, it is obliged under its terms of reference, before reporting it to the House, either to call for a memorandum from the Minister or his Department, or in some cases to ask for representatives to attend to explain certain matters. It is only after that step has been taken that the Select Committee then makes a report.
The Select Committee did that in this case. As a result of its Report, thinking that it was a matter which required the attention and consideration of the House, a Prayer was tabled by the hon. Member for Crosby and others shortly after the Select Committee's Report. It would have come on 4th March, but on that day Government business ran on to half-past eleven. Therefore, under Standing Order No. 100 the Prayer could not be taken. It was tabled again for 5th March, when, I believe, a similar situation arose.
The Prayer could then have been adjourned until the Friday, but you, Mr. Speaker, will realise that, although Standing Orders permit Prayers to be taken on a Friday, a convention has grown up that Prayers are never tabled on a Friday, and I think that it would be very inconvenient if that custom were to arise.
1025 Therefore, the hon. Member for Crosby postponed the Prayer until the last of the 40 available days, which was 9th March. On that occasion again Government business ran on until after half-past eleven, and, therefore, the Prayer was squeezed out. The 40 days had expired. The House was deprived of any opportunity of considering either the Report of the Select Committee or the Prayer.
It is for that reason that this rather unusual Motion appears on the Order Paper tonight. Therefore, I think the first thing that requires the attention of the Leader of the House is what change should be made in Standing Order No. 100 to prevent this regrettable situation arising again. The hon. Member for Crosby pointed out that when the then Leader of the House, Mr. Crookshank, proposed what is now Standing Order 100—then a Sessional Order but now a Standing Order—he drew attention to the opening words of the Standing Order, which read:Except in such cases as the House may otherwise order:—…Then there are the relevant passages which enact that no Prayer can be taken after 11.30 p.m. It was contemplated at that time that some steps would always be taken to ensure that Standing Order 100 did not deprive the House of the right of considering a Prayer within the allotted 40 days.
The hon. Member for Crosby stated that no Motion was put down to waive the Standing Order. I am not sure whether it is open to a back bencher on either side of the House to put down such a Motion. In the ordinary way any Motion to suspend the Standing Order is put down either by the Leader of the House or a Member of the Government and, therefore, I am not sure whether it is open to any other hon. Member to propose that the Standing Order should be suspended. Nevertheless, it is obviously desirable, when a situation of this kind arises, that there should he some machinery available to the Horse to enable it to consider a Statutory Instrument reported to the House by its Select Committee.
There would appear to be two possible ways in which this situation can be remedied. It would, of course, be possible to amend the Statutory Instruments 1026 Act, 1946 by extending the term of 40 days, but that would involve legislation and there might be objections to that. The simpler course, and the one I urge on the Leader of the House, would be to consider what amendments to Standing Order No. 100 are required in the light of this experience to prevent this situation arising again. After all, it would not be difficult to amend Standing Order No. 100 to make an exception for, perhaps, the last five or six days of the 40 days praying time so that if a Prayer is on the Order Paper within the last five on six days of praying time the 11.30 rule does not apply.
It seems that some such variation of the existing Standing Order is required if the House is not to stultify itself by being deprived, as it was on this occasion, of any opportunity of considering a Prayer which a number of hon. Members on both sides wished to put down in respect of this Statutory Instrument. This is the matter the Leader of the House should consider on the general principle involved.
In regard to the merits of this Statutory Instrument, it is fortunate that although this is not an ordinary Prayer, it would still be possible—if, as I hope, the House agrees with the submission made by the hon. Member for Crosby—to correct what seems to some hon. Members to have been on this occasion a clear abuse by the Minister of powers conferred on him by Parliament. I need not elaborate the matter. There used to be a number of cases in which Ministers exceeded powers of delegated legislation and it was because of the outcry that was at that time produced that the Select Committee was set up. I think that in recent years there have been relatively few cases in which the Select Committee has had to report excessive zeal on the part of Ministers in abrogating to themselves powers they did not have.
This is a clear case in which there has been abuse and, in the interests of the preservation of Parliamentary control over the Executive, I should have thought that, for the reasons given by the hon. Member for Crosby, this is a case in which the Minister would wish to withdraw this Statutory Instrument and defer to the wishes of the House. Even if there were doubt about the 1027 matter, surely the Government should not wish to rely on the fact that the 40 days' time for praying against the Instrument had expired.
All I need add on the merits is that the Minister has been given certain powers, but he has not been given the power to sub-delegate his legislative function. It is contrary to all our traditions to attempt to confer upon a private body, however eminent, however respectable, the power to legislate and the power to impose additions to our criminal law—and that is what is being done. In Regulation 3 the Minister says that in so far as the British Pharmacopoeia and the British Pharmaceutical Codex revise current editions by adding various other drugs, with monographs attached to them, then individual members of the public become liable to penalties.
I have no doubt that these are very reputable bodies which will act with the greatest circumspection and discretion, but they are not allowed to legislate or create a crime. That is the duty of Parliament. They are responsible to nobody, however properly they may wish to act. It may be inconvenient to change Statutory Instruments from time to time, but it is not all that inconvenient. Those who sit on the Statutory Instruments Committee know that a number of Statutory Instruments are changed with great frequency, for what may appear to members of the public to be very trivial reasons. They are changed because the law has to be changed in that way and that is the only way, Parliament has laid down, in which the law can be changed other than by Act of Parliament. If Parliament is to function properly, and delegated legislation is to be kept within properly prescribed bounds, then it is right that the House should take a particularly strict view in these matters.
For these reasons, I hope that the Minister will accept the proposals made to him and will withdraw the Statutory Instrument.
§ 10.38 p.m.
§ Sir Godfrey Nicholson (Farnham)
Curiously enough, I think that this is rather an historic occasion. It will not attract much public significance, but 1028 what we do or fail to do tonight may have far-reaching consequences in the ultimate, both on the rights of the individual and on the rights of the House.
My hon. Friend the Member for Crosby (Mr. Graham Page) and the hon. Member for Islington, East (Mr. Fletcher) have put the position quite clearly. I am reminded of the story of the little Dutch child who found a leak in a dyke, and who saved the situation first by putting in his hand, then his arm and then his whole body, until rescue came and the leak was stopped. In this case the leak in the dyke is only a slight trickle. But I believe that this confession of the power of sub-delegation by the Government may ultimately grow until it represents considerable inroads into those rights of the individual which we are here to protect.
I am also concerned with the rights of the House. I have been interested in Statutory Instruments for a long time. I have been Chairman of the Select Committee. I sat on the Select Committee appointed to consider how Prayers should be dealt with. I was left with the impression that the situation was watertight and that if the watchdog Committee set up by the House reported adversely on a Statutory Instrument or the powers claimed thereunder, then the House would have the opportunity to debate a Prayer for the withdrawal of that Statutory Instrument.
I was amazed a few weeks ago, as a result of Questions in the House at the time of the announcement of business, to learn that the system had completely broken down. What seems to me to be serious is that we had to rely upon the good will of the Leader of the House for tonight's exercise. It would be churlish of me not to thank my right hon. and learned Friend for the generous and broadminded way in which he accepted the suggestions that were made to him, but it is simply not good enough that we should be at his mercy, or that of any other Member of the House, for the rights of this House. Surely, it must stand to reason that when a Select Committee, appointed by this House—and it should be remembered that a Select Committee is this House in miniature—reports adversely upon any action of the Government and hon. Members desire to 1029 debate that Report, it is unthinkable that we should not have that opportunity.
Unless the House puts its foot down on both these issues, particularly on the rights of this House, a leak in the dyke may start which will take much effort to staunch. There is, I feel, only one way in which this incredible situation can be dealt with, and that is to refer it at once to the Select Committee on Procedure, which has already been appointed.
I ask my right hon. and learned Friend the Leader of the House to recognise that this is not just a case in which he can get up and say, "Peccavi, I am very sorry, this will not happen again." He must take steps to see that the House reaches a sensible conclusion designed to avoid the arising of this situation again. As I said when I started, nobody will take any notice of this debate. If, however, we let this occasion pass without expressing our views strongly, we shall do great harm in the ultimate future.
§ 10.42 p.m.
§ Dr. Horace King (Southampton, Itchen)
First, I congratulate the hon. Member for Farnham (Sir G. Nicholson) upon his speech tonight and the support he has given to the Committee over the past weeks in its efforts to have this matter discussed. We always regard the hon. Member as one who has for many years zealously fought for the rights of this House and of Parliament.
In congratulating, also, the hon. Member for Crosby (Mr. Graham Page) upon his tenacity in these past weeks and for his speech tonight, I would say, first, to the House that the Prayer to which he was referring against an Order was an unusual kind of Prayer. It was not a Prayer of the ordinary kind in which somebody in the House was worried about the nature of or the policy contained in a regulation, but was a Prayer that he put down on behalf of the Committee because he thought that the Order infringed a constitutional principle.
I echo what the hon. Member for Farnham has said and I thank the Leader of the House for his courtesy in sending to every hon. Member who had his name to the Motion on the Order Paper a letter informing them that this debate would take place to- 1030 night. Throughout our discussions on Thursdays, the Leader of the House has shown clearly that he accepts our view that this is an important matter and that it is his duty, as Leader of the House, to protect the rights of hon. Members and of Committees and of Parliament. He has carried out his duties in this respect as those of us who have come to know him over the years would expect him to do.
I do not wish to go into detail on the point at issue between the Statutory Instruments Committee and the two Ministers concerned. I merely repeat from the case so admirably put by the hon. Member for Crosby and my hon. Friend the Member for Islington, East (Mr. Fletcher), the Chairman of the Statutory Instruments Committee, that we made exactly the same constitutional criticisms on the Building Standards (Scotland) Regulations, 1963, that when they were debated in the House, after we had had replies from the Scottish Minister, the Minister concerned took back the Regulations and undertook to amend them. The difference between that case and this one is that the Scottish Minister concerned and the Minister of Health have dug their heels in on this one and refused to budge, despite the Report which the Select Committee has made to the House.
I believe that the hon. Member for Farnham is right: the issue we are debating tonight is whether we are prepared to hand over to anyone outside Parliament power to make laws which have never been approved by Parliament. I want to remind the House of one or two basic principles. The Statutory Instruments Committee was founded because under the present pressure of business Parliament cannot make laws in the detail which is necessary. What Parliament can do is to make laws, and, in certain parts of those laws, empower a Minister to write out specific details in Statutory Instruments or Orders or Regulations. Ever since Hewart's excellent book, "The New Despotism,"—indeed, if not before then—Parliament has been anxious about the power which it gives to the Executive, anxious that that power should no be badly used in any way.
It is impossible for the House to debate most of the Orders—there are 1031 thousands of them; and it is certainly impossible for the House to amend them. Indeed, that is why Ministers were empowered to make them, and yet, in a Regulation, a Minister may be tempted to do something which he wishes to do, but which Parliament has not said that he can do.
That is what the Select Committee means when it reports of the Regulation of which it disapproves that this is an unexpected use of powers, and this unexpected use of powers, of doing what the Minister is not empowered under the parent Act to do, is the most dangerous of all abuses which might be made in Regulations.
In addition to the illustrations given by the hon. Gentleman the Member for Crosby, let me illustrate. A Minister may be instructed in the parent Act that before he makes an Order he must consult certain bodies, that he must take a number of steps, that he should consult another Minister. One of the functions of the Select Committee is to see not only that these preliminary steps have been taken, but that the Order itself recites that they have been taken. It is a temptation, when making a Regulation, to make it retrospective, which is against the nature of Parliament. There are other defects. For all these reasons we set up at the beginning of each Session the Statutory Instruments Committee.
I believe that this Committee is a good Committee. I am not speaking as a member of the Committee. I want to pay tribute to my hon. Friend the Chairman of the Committee. Hon. Members on both sides of the House know that he presides over the Committee with distinction. As a non-lawyer, as non-learned, I want to pay a sincere tribute to the learned members of the Committee. We had an example tonight in the speech of the hon. Gentleman the Member for Crosby. For eight to 10 years I have watched with admiration the work of my legal colleagues on this Committee in their examination of various Orders. All of us would wish to pay tribute to the excellent advice we get at each of our meetings from our counsel, Sir Robert Speed.
It is obvious that the Committee, no matter how closely it watches Orders, 1032 will never find a Minister engaged in a really felonious gerrymandering of the law. Ministries and Ministers are, like ourselves, law-abiding citizens. When making Regulations they do no more and no less than they are empowered to do by a parent Act, in 999 cases out of 1,000, and even in the thousandth case, which is this one we are discussing tonight, one would not accuse the Minister or his advisers of making a willful, criminal error. In this case, for example, the Department still thinks that it is right and that the Select Committee is wrong. It is because of that clash that we have had the original Prayer and tonight's Motion of censure on the Ministry.
The work of the Statutory Instruments Committee is to preserve the British people against tyranny. In some countries tyranny comes overnight. I have often said in another context that if ever tyranny came to this country it would come in the most respectable guise and probably be led by the Archbishop of Canterbury and all the Establishment in the smoothest and gentlest way, or it would creep in by degrees. This is where the hon. Member for Farnham is so right. I admit that the actual point we criticise in the Order is a tiny one. But although this may be a tiny breach in the dyke, that tiny breach could very easily enlarge if the House does not take notice of it tonight.
It is very important that the House should support its Committee tonight and make the Minister take back the Regulations, or, if it does not, deliberately as a House give the Minister the power to do what we believe he had not the power to do when we examined the Regulations in Committee. This is not a question of whether one amount of pharmaceutical product in two years' time is better than one that is specified at the present moment. It is not a question whether the methods that are used to measure weights and measures will improve in the years ahead. Those of us who sat on the Weights and Measures Bill Committee know that there is a tremendous revolution going on in our conception of weights and measures. We know that there is a great deal of new thinking going on.
1033 But that is not the issue. If the Regulations pass in their present form, we are handing over by a tiny amount—a dram or a scruple, if I may use the weights and measures of the pharmacists—to pharmacists, editors, printers or publishers, for the best of reasons perhaps at the moment a power which the Minister thinks they ought to have. But the time may come when exactly that same power will be handed over to pharmacists, publishers or anybody else not by a dram or a scruple but by something which is really considerably weighty, affecting the well-being and liberties of our people.
It is worth pointing out for the record that the Statutory Instruments Committee, which examines thousands of Instruments every year, very rarely has to report one, but I think that when it does report one it has the right to expect the support of its colleagues in the House of Commons.
In any case, I think that the debate will do good. I think that we shall now have to face the issue, which is that when the Statutory Instruments Committee reports that it believes that a Ministry has exceeded its constitutional powers and when it has taken the action that it did in this case of praying against Regulations, not on policy grounds but on constitutional grounds, it would be wrong for the House not to ensure that it is debated. Just as a Motion of censure on the Government has to be debated, and just as, in the last resort, this Motion of censure on the Ministers concerned has to be debated it seems to me that the Reports of the Statutory Instruments Committee, when they raise a constitutional issue, ought to be faced in the House.
§ 10.54 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
The procedural considerations which are involved in the Motion have, I think, been very adequately discussed by hon. Members on both sides. I am inclined to think that perhaps no dramatic change is needed either in the Standing Order or in the Statute which prescribes the 40 day period, because I have a feeling that what went wrong in this case was that my right hon. and learned Friend the Leader of the House probably actually did not know until too late what was happening. Indeed, I 1034 think he said so one Thursday, when the business of the House was discussed.
As I understand the Standing Order, there is no inherent problem in suspending the operation of it by a Motion so as to make sure that a Prayer of this character is discussed when time is getting short. I think what happened on this occasion was that the Leader of the House did not realise what had happened until the last day, when he was up against the interesting position that, if the Standing Order was suspended so as to allow for the Prayer being taken after 12 midnight, it would be debated on the forty-first day after it was laid and not on the fortieth, so that it was too late for remedial action to be taken.
However that may be, it is of first importance that, when a Prayer is put down for debate in the circumstances in which that Prayer was put down for debate, it should be discussed by the House and not lost through the operation of Standing Order No. 100. I do not think that any hon. Member will doubt the importance of that. My hon. Friend the Member for Crosby (Mr. Graham Page) has done a great service in his persistence in getting the matter debated, because I feel sure that it will give the Leader of the House an opportunity of reaffirming the assurance given by Lord Crook-shank, when he was Leader of the House, and putting on record again, in more modern times, that a Prayer founded upon a Report of a Select Committee will never be allowed to die in such circumstances as this last one did.
I am not sure that we are wise to confine what we say tonight to the Prayer founded upon the Report of the Select Committee on Statutory Instruments. Prayers are the only control which the House as a whole has over the power of making delegated legislation. It should be a convention of the House that any Prayer put down in reasonable time should go on for debate.
Obviously, if a private Member puts down a Prayer on the thirty-ninth day after an Order has been laid, he cannot expect total disruption of the proceedings of the House so that his Prayer shall be debated on the last night available, but in the case of the Select Committee on Statutory Instruments there is a risk inherent in its procedure in that Prayers founded upon its reports inevitably are put down rather late and, therefore, in 1035 assessing what is a reasonable time to put down a Prayer, the Leader of the House must, of course, take into account the fact that it is a Prayer based upon a report to the House by the Committee.
I feel confident that the result of my hon. Friend's bringing this before the House tonight will be that, for at least 10 years to come, a similar incident will not occur again. The price of liberty is eternal vigilance and I do not doubt that our successors in this House will be equally vigilant and that, in 10 years' time, there will be another row if necessary.
The merits of the Motion are quite equally important. The Statutory Instruments Committee is, by the Resolution that sets it up, debarred from considering anything so interesting as the merits of the Instruments. The substance of the point we bring up tonight is inevitably tedious superficially. The reason that such matters are referred to the Select Committee is that they are too tedious to command the attention of the House as a whole and this disagreeable task is put upon a small number of hon. Members, who discharge it cheerfully and, no doubt, efficiently. But while the point itself may be very small in its compass, it involves a constitutional principle.
I am glad that my hon. Friend the Member for Crosby referred to the Building Standards Regulations, the subject matter of a recent Prayer. The case of the Building Standards (Scotland) Regulations show exactly the danger of allowing this sort of thing to pass. They were a much more flagrant example. They said, in effect, that the standards for building operations in Scotland should be as fixed from time to time by the British Standards Institution. That was a bit much for anyone to swallow, and the Select Committee did not swallow it.
When the Prayer was debated, the Secretary of State for Scotland did not attempt to defend the position. He at once said that this was something which could not be allowed and that he would introduce an amending Instrument before the main one came into force, which he did. If the Select Committee and the House were not prompt in drawing attention to any kind of delegated 1036 legislation, that sort of thing would become common practice. This is the easy and lazy way of doing things, and it is most attractive to Departments.
These Regulations are not such a flagrant example. They are rather closer to the thin end of the wedge and the Departments concerned have contrasted what they have done with what was being done with the Building Standards Regulations. In their memorandum to the Select Committee they say that what they are doing is quite different, that the actual effect of the law and its very nature were being changed by the Building Standards Regulations by each subsequent addition to the booklet of the British Standards Institution, while in this case they were laying down what the law should be and that only its range of application would be changed by subsequent editions of the Codex and British Pharmacopoiea.
Is there any difference in principle between saying what the Building Standards Regulations said and what these regulations say? These say that this prescription shall apply, that this rule of law shall apply, but that to what, it shall apply shall be decided by the Codex Committee of the Pharmaceutical Society and the Pharmacopoiea Committee of the General Medical Council. Whether it shall apply to this or that drug and for what period shall be decided not by Parliament, or the Minister acting on the delegated authority of Parliament, but by the appropriate committees of those two bodies.
The British Pharmaceutical Society is a private society. It produces a book called the British Pharmaceutical Codex, which is in the House of Commons Library, where I was reading it this evening, for the general guidance of pharmacists. It is a very useful book, but the Society could produce it when it liked and could make what amendments in it it liked and need not print it unless it wanted to, or could print an edition as limited as it chose. The amendments to it between each five-yearly edition could be printed and published in any form that appealed to the Society and made available to anyone to whom it chose to make them available and denied to anyone to whom the Society chose to deny them.
1037 The General Medical Council, which produces the British Pharmacopoeia, is at least a statutory body and one of its statutory functions is the production of the British Pharmacopoeia. But the Act of 1956 which confers that power upon it does not confer any statutory binding force on the British Pharmacopoeia, which is merely a convenient set of standards of purity, descriptions of drugs. No doubt it is a very useful document, but no one ever intended it to form part of the law of the land. It is simply drawn up and changed from time to time by a committee appointed by the General Medical Council. No kind of statutory procedure is observed.
I have examined the 63rd edition of the Codex. Editions are published every five years, and I find that, during the five years 1958 to 1963, 263 monographs have been added, and 103 deleted. The rate of change has been growing, so from 1963 to 1968 we can expect about 500 alterations in the British Pharmacopoeia and equally, I imagine, in the Codex. That is several every month, and indeed several every week, and as they go in and come out so does the application of the law in this Statutory Instrument.
It is said that this is different from the Building Standards (Scotland) Regulations. I confess that on the principle of delegation I cannot detect the difference. While I agree that it is less flagrant than the Building Standards Regulations, it involves the same principle, and if we once accept the doctrine that these Statutory Instruments can be made by reference to unofficial private publications, and the different editions of them, I think that the control of this House over delegated legislation will have gone.
For those reasons, bearing in mind that this is not a permissive Statutory Instrument but a mandatory one, with penalties, imprisonment, and so on, I ask the House to take a serious view of this and not to be misled by the specious argument that what we are doing is laying down the law and that the area of application—and only the area of application—will be varied by outside bodies.
The principle is the same. That principle is at stake tonight, and it has to be decided tonight. I hope, therefore, that my right hon. Friend the Minister of Health will not stick on any depart- 1038 mental pride and say that, like the housemaid's baby, it is only a little one. I know that it may mean somewhat frequent changes of the Regulations, but that is not the argument.
Those who serve on the Select Committee on Statutory Instruments see the constant ebb and flow of road traffic regulations for one-way streets and all kinds of traffic regulations; regulations which are made one day and cancelled the next, and it is right that they should be. I remember the occasion when the tram lines on the Embankment were ripped up. Those concerned with the project put up "No entry" notices at each end of the Embankment and at the various access points to keep out motor traffic. That was no doubt a sensible thing to do, but the late Sir Herbert Williams ferreted out the fact that the Ministry had not obtained a Statutory Instrument to give it authority to do that and that the notices were all bluff.
It is important that we should keep our procedure right. Everything that is done should have the sanction of law, and if that means laying Statutory Instruments rather frequently and then cancelling them after a few weeks, it is, nevertheless, an inherent part of the rule of law. That is what this House is here to preserve, and I therefore hope that my right hon. Friend's reply will be such that my hon. Friend will be able to withdraw the Motion.
§ 11.4 p.m.
§ Mr. James Hoy (Edinburgh, Leith)
I think that the House is indebted to all the Select Committees which meet upstairs for the work that they do. Whether it is the Public Accounts Committee, whose Chairman has spoken tonight, or the Select Committee on Statutory Instruments, what they are doing is seeking to protect the rights of the House against the Executive.
I was delighted to hear the hon. Member for Crosby (Mr. Graham Page) move the Motion. I thought that he did a first-class job for the House of Commons. It is in that light that we should consider the Motion.
I am sorry that the Minister who is to reply is the Minister of Health. The Scottish Office is also involved in the argument. Of the two Ministries the one most culpable is surely the Scottish Office, 1039 because it is apparently quite prepared to do anything that the English Ministry does, and without giving the matter any consideration it has said that if the English Ministry is to do this, then it must be right. What is frightening about the situation is the evidence laid before the Select Committee on Statutory Instruments. At Question 25 the Chairman—my hon. Friend the Member for Islington, East (Mr. Fletcher)—asked the Scottish Office witness:Do I understand from that that you did not give any independent consideration to the obligation to lay the Instrument?The witness replied:So far as the Scottish lawyers were concerned we were not asked for an opinion about this until approximately the same time as Mr. Davis"—the representative from the Ministry of Health—was asked. We in the Solicitor's Office had heard about this.He ought not to have heard. Apparently somebody told him. He said:I had been told about it and I was quite clear that the Regulations should be laid. In Scotland, we have not got any doctrine of escrow.In effect, he was saying that somebody told him about it and he accepted it without any consideration or consultation at all.
§ Mr. Ronald Bell
The hon. Member is on bulls and boars at the moment. We are on weights and measures.
§ Mr. Hoy
With respect to the hon. Member, it is exactly the same point. The Scottish Ministry was arguing that it was prepared to accept what the English Ministry said. I am not arguing any more than that for the moment.
My hon. Friend the Chairman of the Select Committee then said:Just to get it clear, you do not take the view in Scotland, do you, that any failure on the part of an English Ministry to comply with the Act exonerates the Scottish Office?to which the reply was:Oh, indeed not, not in law.It does not exonerate it in any way. This is a little frightening. It is important, because if a Ministry brings a Statutory Instrument before the House the House is entitled to expect that the Ministry has paid some attention to what is contained in that Instrument.
1040 We are not arguing any more than that tonight. Question 33 was put by the hon. Member for Crosby himself. He asked:At what date did the Scottish Office decide that new Regulations must be made and that these old ones were, indeed, ineffective?The Scottish Office representative replied:I can only answer to that, at the same point of time as the Ministry decided this. We were following the Ministry in this. This may sound a not very satisfactory answer, but that is the fact.Indeed, the answer was not very satisfactory. I am certain that the House would agree that it was not satisfactory, and that the Select Committee did not consider it as satisfactory. If a Ministry lays a Statutory Instrument we are entitled to expect it to have given that Instrument some consideration. The Scottish Office said that it had given it no consideration, but had merely accepted the word of another Ministry that this was correct. Having accepted it, the Scottish Office let it go.
This is most unsatisfactory. The House is entitled to expect that when any Department produces a Statutory Instrument for its consideration it has not only given consideration to it, but has approved it. What the Scottish Office was saying was that it had given it no consideration at all. It merely accepted the recommendation of the Ministry of Health in this respect. This we find most unsatisfactory. This is a point of tremendous importance. I have always argued, as long as I have been a Member of the House, that the House is supreme. The Committees we appoint are appointed to look after the interests of the House and of the country.
The point raised in this Motion is extremely important. I add my thanks, if thanks be needed, to the Leader of the House, because I am told that without this agreement this Motion could not have been discussed tonight. We are indebted to the right hon. and learned Gentleman, but surely the House ought not to have to thank him for doing so. It should have the right to protect the interests of the House. So, while we are grateful to the right hon. and learned Gentleman, this discloses a weakness. We have to regard and protect the interests of the House of Commons.
If the Scottish Office is to produce Regulations of this kind we are entitled 1041 to expect that it has given consideration to them and is not merely accepting the word of another Ministry. That is why I am a little disappointed that the Scottish Office, which is so culpable in regard to these Regulations, is not taking part in this debate. It should be doing so, but we shall listen with interest to the Minister of Health.
§ 11.17 p.m.
§ The Minister of Health (Mr. Anthony Barber)
I wish to express to the House my satisfaction that time has been found to debate this Motion. I had hoped that my hon. Friend the Parliamentary Secretary or I would have the opportunity at an earlier stage of speaking on the merits of the Regulations in question, but, for various reasons which have been referred to, the Prayer on the Order Paper was not reached.
I am now able to explain to the House why I believe some hon. Members have misunderstood the nature and significance of these Regulations. First, I say this to the House. It is sometimes assumed that only Members of Parliament are jealous of the control of Parliament over changes in the law. My hon. Friend the Member for Crosby (Mr. Graham Page) and I were trained as lawyers, as was my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) and the hon. Member for Islington, East (Mr. Fletcher). All those hon. Members' names appear in support of the Motion. Certainly, before ever I contemplated entering this House I was very conscious of the dangers which could arise from an excessive use of delegated legislation, or, if I may use the words in the Motion, theunexpected use of the powers conferredon the Executive by Parliament.
When, therefore, I read the Resolution of the Select Committee on Statutory Instruments, I considered the matter with great care. On one point I can give the House—my hon. Friend the Member for Buckinghamshire, South raised this in particular—a categorical assurance. If I had at that stage reached the conclusion that I had originally been wrong and that the doubts which have been expressed were justified, I would not have hesitated to amend the Regulations, but, for reasons I shall advance, I think—and, I hope, the House will see—that what my right hon. Friend the 1042 Secretary of State for Scotland and I have done in this case is reasonable and that there is some misunderstanding about the application in this particular case of the important constitutional principle we have been considering this evening.
I fear that I must weary the House by explaining—as briefly as I can—the nature and purpose of the Regulations that we a re considering.
I will explain, first, that they are made under Section 10(7) of the Weights and Measures Act, 1963. This Section deals with units of measurement, and weights and measures lawful for use in trade. But, it excepts dealing in drugs from certain provisions and empowers the Minister of Health and the Secretary of State for Scotland to make Regulations about this aspect of the matter. The Regulations have two objects; first, to specify equivalencies between apothecaries' weights and metric weights, and to permit dealers in drugs to use the equivalents and, secondly, to require that, after certain dates, orders for certain drugs which are expressed in apothecaries' weights should be carried out in metric weights.
These Regulations represent a very important step in the complete change over in pharmacy to the metric system, and I have been told that the pharmaceutical industry already uses the metric system exclusively for the supply of bulk drug. I do not, therefore, think that there is any quarrel with the general intent of the Regulations, and the objections which have been raised tonight concern the way in which drugs for the second purpose which I have mentioned are defined. It has been argued that, by drawing the definition in terms of what is included in the British Pharmacopoeia and the British Pharmaceutical Codex, and any additions or amendments to them, we have removed from Parliamentary control the exercise of the discretion which the Act gives to Ministers and, further, that this represents an unexpected use of their discretion.
First, let me say something about the substance of this matter. Of course, this is not the end of this topic but I think that most hon. Members will consider this highly relevant. I do not think that anyone who considers this aspect will deny that, in substance, no real 1043 diminution of Parliamentary control will result from the operation of these Regulations. It would have been perfectly possible for us to have drafted the Regulations in such a way as to limit their operation to what is at present in the 1963 editions of the British Pharmacopoeia and the British Pharmaceutical Codex on the basis that fresh Regulations would be made every time there were additions or amendments. We could have done it that way and so have avoided this difference of opinion, but I ask the House to contemplate the consequences of that.
To have done it would have resulted in a whole series of amending Regulations, together with uncertainty—not to mention inconvenience—among the profession without, in fact, increasing in any way the real Parliamentary safeguards.
There are two key points to be remembered. First, this is not a matter of Ministers exercising a discretion which is limited by the Act to certain drugs which are to be specified in subordinate legislation and on the exercise of which, therefore, Parliament must keep a watchful eye. The Act empowers the Ministers concerned to make Regulations in respect of specified dealings in drugs, and I would ask the House to note the relevant words of Section 10(7) which confers these powers. They are set out in two paragraphs which read as follows:…the Minister of Health and the Secretary of State acting jointly may by regulations made by statutory instrument…and then there are a few more words which I need not quote,…prescribe what may be treated for the purposes of dealing with drugs, or the equivalent of, or of any multiple or fraction of, any unit of measurement which is or at the date of the commencement of this section was included in Schedule 1 to this Act in terms of any other such unit".The next paragraph is also relevant, but I will read only that part which is relevant to what we are discussing. That is,require that any person carrying out any such dealing with drugs as is specified in the regulations for the purposes of which the quantity of the drugs is expressed in terms of any such unit as aforesaid which is so specified shall carry out that dealing in terms of such equivalent quantity prescribed under paragraph (a) of this subsection as is so specified.1044 The words in question are:…any person carrying out any such dealing with drugs as is specified in the regulations.…I think that there will be no dispute that that paragraph is concerned primarily with categories of dealing and not categories of drugs. Under the authority of that Section, Regulations could have been made covering all drugs without any limitation whatever.
I do not see how exception could possibly have been taken to such a course if it had been thought wise to adopt it. The limitation in the Regulations to certain drugs is made solely for practical reasons because, by the nature of things, it is not possible to make a complete change-over at once. I repeat, as I understand it, under the authority of the enabling subsection, Regulations could have been made covering all drugs. The natural limitation, of course, is to dealings in those drugs for which standards exist from time to time in the standard works of reference used in dealings with drugs. There is, therefore—with respect to the hon. Member for Southampton, Itchen (Dr. King)—no real comparison here with the Building Standards (Scotland) Regulations, 1963, on which a similar point was taken by the Committee and which my right hon. Friend the Secretary of State has undertaken to amend.
§ Mr. Fletcher
I do not think that the Minister has followed the point. He is arguing that he could have made a different Regulation in which he could have proscribed all drugs. He says that the Act gives him power to make Regulations dealing with dealings. He has not done that, but has attempted to make a Regulation not about dealings but about specific drugs. He says he could have made one concerned with all drugs and has referred to future editions of the Codex, but how does he know that he will agree with some amendments that may hereafter be made?
§ Mr. Barber
I would agree because it is the policy of the Government—and there is no dispute between the two sides of the House on this—to change over completely to the metric system. It is purely a matter of convenience whether we do it at one go or from time to time.
1045 I made the point that it would have been open to us to have covered all drugs merely because some hon. Members seemed to suggest that Ministers would not be empowered to do that. I think that, on reflection, having considered the words involved, they will agree that we could have taken that line.
§ Mr. Ronald Bell
Would not my right hon. Friend agree that while it might have been possible for him to have done that in a manner applying to all drugs, it would not have been right for him to have done it in a manner applying to such drugs as might be specified by X—X being someone outside Parliament?
§ Mr. Barber
I had intended to contrast what has been done in this case with what was done in the Building Standards (Scotland) Regulations, which my right hon. Friend the Secretary of State has undertaken to amend. Perhaps I can explain why I believe that there is no real comparison between these two sets of Regulations. Under Regulation No. 11 of those Regulations, an element of structure or other part of a building which consists of scheduled materials or which is constructed by methods conforming to scheduled specifications is deemed to satisfy the relevant provisions of the Regulations.
Obviously, changes in specifications under the Schedule may produce changes in the legislative effect of the Regulations on which the views of Parliament will not have been expressed. It is no doubt right that no such change should take place without the knowledge of Parliament. The references in the Schedule to the British Standards or Code of Practice were therefore intended to refer only to the edition as at the date of making the Regulations and there was no intention of securing an amendment under the Schedule without reference to Parliament.
With the Weights and Measures Regulations, on the other hand, it is quite clear that it would not be contrary to the wishes of Parliament if all drugs were in due course sold or supplied in accordance with the metric system. There is, therefore, no possibility of action on the part of a non-Parliamentary body going beyond what Parliament contemplated when this Act was considered.
1046 The second key point is that, as I see it, it is no infringement of Parliamentary control and no unexpected use of the powers in the Act to define the drugs to which the prescribed equivalents apply by reference to the British Pharmacopoeia and British Pharmaceutical Codex current at the time of the dealing. Parliament has already accepted the principle that the British Pharmacopoeia and British Pharmaceutical Codex, as in existence from time to time, are compilations or dictionaries setting out standard thugs. It was said that these two books or volumes do not form part of the law, but I must remind the House that this is apparent not only from a variety of Statutes but also from a variety of Statutory Instruments.
I could refer the House to a number of examples, which I have here but I hope that it will suffice if I instance just one—the Pharmacy and Medicines Act, 1941, as amended by the Medical Act, 1956, which provided that no person might sell by retail any article consisting of or comprising a substance recommended as a medicine unless it is labelled with the appropriate designation. The appropriate designation is defined in the case of a substance not a poison and which is described in any monograph contained in the edition of the British Pharmacopoeia or British Pharmaceutical Codex current at the time the article was sold as the description set out at the head of the monograph. Furthermore, in that case in which reference is made to the Pharmacopoeia or Codex current at the time the article was sold, a specific statutory penalty attaches to non-compliance. It is apparent that Parliament recognised that the British Pharmacopoeia and the Codex were compilations produced by experts and that offences could properly be created in relation to certain events, even though Parliament did not know what would be inserted in future editions.
§ Mr. Fletcher
The Minister is quoting from an Act of Parliament. Obviously Parliament can do what it likes. But a Minister cannot do what he likes. He can do only what Parliament has empowered him to do.
§ Mr. Barber
There are a number of instances such as the Labelling of Food Order, 1953, which in the Third Schedule, paragraph 8, column 1, referred not only 1047 to macaroni, spaghetti and Worcester sauce but also toany preparation which is the subject of a monograph in the 1948 or any later issue of the British Pharmacopoeia, including the addenda thereto, or in the Formulary section of the 1949 or any later issue of the British Pharmaceutical Codex, including supplements thereto".There are a number of other examples I have here which I could cite, but they only add weight to the same point.
There is one point which I should clear up. My hon. Friend the Member for Crosby made, if I may respectfully say so, the same mistake as I made in looking at Section 52 of the Weights and Measures Act, 1963, and in assuming that the penalties there laid down would be applicable to any deviation from these Regulations. I am informed—and on looking at it this seems to be correct—that the provisions of Section 52 of the Weights and Measures Act which provides for penalties do not apply to the Regulations made by the Secretary of State for Scotland and myself under Section 10(7). This, incidentally, is in contrast with the Act of 1941 as amended by the Medical Act, 1956. I take the point made by the hon. Member about that being a Statute and these being Regulations, but one reason why I am so relieved, at long last, to be able to unburden myself of this rather tedious argument is that it seemed to me that hon. Members might have misunderstood the precedents and what has gone before in this connection concerning the Codex and the Pharmacopoeia.
§ Mr. Graham Page
My right hon. Friend has said that Section 52—the offences Section—does not apply, but is there no penalty for breach of these Statutory Instruments?
§ Mr. Barber
Any enforcement would, as, I think, my hon. Friend anticipated, have to be sought on general principles of common law, but certainly no specific statutory penalty is laid down in Section 52.
If one examines Statutory Instruments referring to the British Pharmacopoeia or to the British Pharmaceutical Codex, it will be found that three different methods of drafting have been used depending upon the purpose for which the references were made. There may 1048 be references to a particular edition or a reference to the British Pharmacopoeia without mentioning the particular edition, or to the British Pharmacopoeia as amended or to new editions or to the British Pharmacopoeia in force for the time being. These precedents show a diversity of approach because of the need, in particular circumstances, to refer either to a former edition of the Pharmacopoeia or to the current one or to future editions.
A reference to future editions was thought to be justified in the case of these Regulations in the same way as Parliament, in the 1941 Act, thought it necessary to refer to editions current at the time of the event or, in the case of another instance, if I may refer to it briefly, in the case of the Medical Act, 1956, where it was thought necessary to consider references in Instruments to Pharmacopoeias in use before 1862 in terms of the current Pharmacopoeia. The point I am making is that, with all respect to the views which have been expressed. Regulations which follow precedents set not merely in subordinate legislation, but also by Parliament itself, do not constitute an unexpected use of the powers conferred by the Weights and Measures Act.
To sum up, first, the provisions of Regulation No. 3, with which we are primarily concerned, are within the ambit of subsection (7) of Section 10 of the parent Act. I do not think that this is disputed. Secondly, to have made no reference to amendments or new editions of the Pharmacopoeia or the British Pharmaceutical Codex would have involved laying before Parliament a series of Statutory Instruments without, I suggest, increasing in any real way the Parliamentary safeguards. Thirdly, to have adopted this procedure would have involved not only considerable inconvenience, but, also, considerable uncertainty for those for whose benefit the Regulations were drafted.
The Regulations were drafted in full consultation with the medical profession, the pharmaceutical profession, the pharmaceutical industry, the General Medical Council and the Association's representative of the local food and drug authorities. As far as I know, no objection has been taken to the Regulations.
Finally, on the question of whether the Regulations involve an unexpected use 1049 of the powers conferred by Statute, whatever hon. Members may previously have thought, I hope that the argument which I have advanced and the precedents which I have cited will have convinced them on reflection that all is well in this case.
I am not one of those who subscribe to the view epitomised long ago in the cynical couplet,For forms of government let fools contest, Whate'er is best administered is best".I must say that I adhere more to the views which have been referred to this evening and expressed by Lord Hewart and Professor C. K. Allen. I therefore welcome this chance of considering the important principle which lies behind this Motion, but this Motion is concerned with a particular Statutory Instrument, and I hope that, in the light of the explanation I have at long last been able to give about this case, my hon. Friend will seek leave to withdraw the Motion.
§ Sir James Pitman (Bath)
May I ask my right hon. Friend this question? I gather that he is making two statements, first of all, that he as Minister in Regulations could have covered the totality, that is to say, all of the drugs; secondly, that it has been clearly the wish of the House to cover all drugs. But is it not the case that by what he has done he has allowed a body outside this House to make it legal, by removing certain drugs from a certain list, to prescribe and deal with these drugs in measures other than those which are covered in the Regulations? In other words, on both issues which he makes—it was wrong to have covered all drugs and that the House would wish to have covered all drugs—he has not done that, because he has given power to people outside this House to except, by leaving out of the Pharmacopoeia certain drugs which in future will be able to be administered or dealt with in measures other than those prescribed in the Regulations?
§ Mr. Barber
I am not sure that is right. I certainly agree with my hon. Friend that, as I understand it, the wish of the House, when the Weights and Measures Bill of 1963 was considered, was that in due course there would be a complete change-over to the metric system so far as drugs are concerned, 1050 but in referring, as Regulation No. 3 does, to the Pharmaceutical Codex or in any amendment or any new edition thereof, what I was trying to say was that we were doing not only what I would have thought is obviously convenient, and does not detract from the real authority of Parliament, but, much more important in relation to the arguments which have been put forward tonight, that we were following precedents—I lave cited one or two—which are highly relevant, and that because of those precedents it really does not follow that what we are doing here involves, if I may use the words of the Motion, an unexpected use of the powers of the Minister under the Statute.
§ Mr. Fletcher
Does not the right hon. Gentleman realise that if, when Parliament passel the Act of 1963—only last year—Parliament had wished him, or wished to authorise him, to legislate in this manner, it could have done so by express wards, enabling him to make this kind of Order? It did not do so.
§ Mr. Barber
Yes, but again, with great respect, I referred as an example to the Labelling of Food Order, 1953, and I inquired again about the authority for the references there to the Pharmacopoeia and any addenda thereto, including the supplements, and I was told that there was no specific power to provide for it in this case by the parent Act.
§ 11.44 p.m.
§ Mr. G. Mitchison (Kettering)
This really will not do. This is a quite simple master, and we have had a long speech from the Minister defending what appears to me to be, and what appeared to the Select Committee to be, a wholly unauthorised Order—unauthorised, of course, in only one respect, and I am not hire to talk about the practical importance of it one way or another. The point is that, if Ministers are to be judges of what matters and what does not matter, then they are exceeding their powers and exceeding the limited authority which this House gives them.
We have the Leader of the House and the Parliamentary Secretary to the Treasury here and I trust that the Government are not going to force this matter to a Division and ride away on a majority on a point which, small 1051 though it may be, is of very real constitutional importance, as hon. Members on both sides have pointed out.
The Select Committee reported on a number of Orders and some have been withdrawn. Touched to the quick by any suggestions as to whether bulls should be licensed or not the Government immediately withdrew the Order. Steps have been taken about the licensing of bulls. It is only on this comparatively small matter that we have been driven to the rather remarkable steps we have had to follow tonight. Whilst I would join in thanking the Leader of the House for providing us the opportunity, I would also join in the observations by hon. Members that it really is a fault in our procedure that we have to depend on the good will of the Government in a question of this sort. This is really a quite simple constitutional point.
The Minister of Health, in his official capacity, was given certain powers, as was the Secretary of State for Scotland, by Statute. I am not concerned with the merits of what he did. He himself acknowledges that what could have been done by this Order could have been done, though more inconveniently as he sees it, by a series of orders. But these would not have left the decision in the hands of an anonymous collection of gentlemen who are editors of these two highly reputable publications. One has only to read the Order to see that the rest of the Order must depend on the decision—important or unimportant does not matter—of these gentlemen, who have not been elected by anyone and have no power to legislate and are in no sense responsible to the House.
Of course, any Government are occasionally a little apt to forget the elementary principles of democracy. That is what the Minister is forgetting today. We cannot allow that to pass. I hope that the Government will not insist tonight on going against the wishes of all those hon. Members who are present. No doubt this may be only one petty tyranny, but the result of one petty tyranny is that the Government are the judges of how many tyrannies are petty and how many can successfully be carried.
1052 I do not suppose that in practice, this is a very important matter. But the point is that we cannot leave it to the Government of the day to decide what is important and what is unimportant in a matter of this sort. They must act within the authority given them and if that authority is in an inconvenient form, or obliges them to do things which involve a constant repetition of statutory Orders, that is the fault of the House—and of the Government for that matter—for introducing legislation in this form.
But once such legislation is introduced it is an elementary principle that it must be acted on strictly, because once one departs from it one leaves the Government themselves to be the judges of how far they may go in transgressing the law. All we heard from the right hon. Gentleman seemed to me to be utterly irrelevant. Supposing there are 21 or 51 cases in which something of the sort has been done before. Is it for us to examine each of them and say what are the distinctions between one case and another? I should have thought that we were not in the least called upon to do that, no more required to do it than when someone is not offered a house by a local authority and says that someone else on the housing list has had much better treatment. It is a simple question depending on the language of the Order and nothing else.
Our own Select Committee—after all, it is a Committee of this House—has decided—and in my view not only rightly but quite obviously rightly—that in this instance the Minister has gone beyond his statutory authority. Talk about an "unexpected" use of it! As my hon. Friend the Member for Islington, East (Mr. Fletcher)—to whom and to all the other members of the Select Committee we ought to be sincerely grateful—has clearly stated that "unexpected" means "unauthorised", I do not know why those concerned go on using the word "unexpected" when what they mean is "unauthorised," but there is no doubt that those two words mean the same thing.
There is not much I can say about it. But here we have the Leader of the House, the Parliamentary Secretary and the Minister. We have not heard from the Scottish Office. I am not altogether surprised. It did not come out of this 1053 very well. It certainly did not do it. It followed the English with an almost pathetic obsequiousness which I thought had effectively been demolished at the battle of Bannockburn—but one never knows where one is getting to in these matters.
The plain English of all this is that the Government have made a mistake. The English Government have made a mistake which they are prepared to defend and which they ought not to defend. The Scottish Government have made a mistake simply by following the English. One way and another, the only reasonable thing to do, the only democratic thing to do and the only right thing to do is to admit the mistake and withdraw the Order; and on such a promise to the House no doubt the Hon. Member for Crosby (Mr. Graham Page) and my hon. Friends would be prepared to withdraw the Motion. There is no real alternative. I earnestly hope that we are not going lo be confronted by a display of force, which is singularly inappropriate when shown by lame ducks.
§ Mr. Barber
I have listened with interest and some concern to what has been said in the course of the debate. I did not seek at the outset to minimise the importance of the constitutional point that was being raised.
Although I am bound to tell the House that I still remain of the view that the Regulations do not make an unexpected use of the powers under which they are made, nevertheless the Secretary of State for Scotland, I am sure, and certainly I would not wish to do anything which might be taken to indicate dissent from those principles of Parliamentary control of which the Select Committee on Statutory Instruments and, indeed, all of us are rightly jealous and which have been emphasised on all sides this evening.
It is evident to me, although I still hold by the views which I have expressed, that opinions differ on the question of whether these Regulations are in truth an example of evasion of Parliamentary control. I certainly would not wish to press unduly my own views in the matter if the feeling of the House is against them, and I hope that I shall be respected as what is called a good House of Commons man for taking this view. If, therefore, my hon. Friend the Member for Crosby (Mr. Graham Page) 1054 will withdraw the Motion, the Secretary of State for Scotland and I will be happy to look again at the matter.
§ Mr. Graham Page
I am grateful to my right hon. Friend, and I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.