HL Deb 23 October 1989 vol 511 cc1141-8

2.57 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on recommitment).—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee (on recommitment) accordingly.


Clause 1 [Constitution and functions of the Council]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Rugby

In order to give effect to the consolidation of this Bill, I believe it would be helpful to do as follows. Those present today, and whose memories can recall the origins of this Bill and who are able to put into perspective the events, should be allowed to make a brief statement regarding not only the legal implications of the Bill today, but also what was implied and stated to Parliament.

The object of the Opticians Act was to acquire a monopoly in the sale of optical appliances generically termed spectacles and to shut out competition. The main thrust of the proposals was presented to Parliament under a Private Members' Bill. This Bill centred itself on the sale in particular of reading spectacles by personal choice as previously practised, but thereafter to enforce their acquisition only under compulsory eye testing and by prescription issued within outlets owned by opticians.

That is borne out by reference to Hansard and to statements made by Lord Crook, who chaired the Committee prior to the Act. The acceptance by Parliament of these proposals was gained against stiff opposition to the Bill. It stifled that opposition by offering to create a representative council whose membership would ensure fair play for the public and whose integrity would at all times be seen to be upholding the rights of the people in the face of this new jurisdiction over their personal freedom.

The recent decision by Parliament concerning the choice of reading spectacles has now been overturned; but this was the very pillar on which the entire Act stood. The arguments for this legislation have collapsed and the original Act concerning eye testing and the issuing of prescriptions now lacks any credibility. By the very implications of this reversal, it seems to me that it is now almost impossible to create a law. Therefore, instead of attempting to consolidate this Act, so clearly flawed by its example, we should be asking for a re-examination and a reassessment in order that a credible Act can be made viable in law—if such a law is needed.

I move therefore that this Chamber is unable to accept the consolidation of this Bill until such findings by a committee appointed by the Minister of Health are made available to Parliament.

3 p.m.

Lord Northfield

I do not know the position as regards order in connection with the Motion which the noble Lord, Lord Rugby, has just mentioned. In my view, we are on the more general debate regarding Clause 1. I should like to say just a few words. Clause 1 deals with the setting up of the General Optical Council, which was proposed by the 1958 Act. I wish to say something about the changing role of that council as shown in the Bill before us.

As the noble Lord, Lord Rugby, said, the 1958 Act made the mistake—now, I think, belatedly recognised—of failing to distinguish between the technical job of testing sight and the commercial activity of selling spectacles. Both were left as a monopoly of opticians under the control of the General Optical Council. They were left so despite the warnings of the danger of overcharging and poor competition. We can imagine the position if we take a parallel: for example, if we had given doctors the sole right of selling medicines and had then begun to wonder, all too late, about possible over-prescribing and overcharging.

The changes made in the 1980s and consolidated in this Bill are very instructive. The optical council, the regulatory body set up by the 1958 Act, failed to deal with the abuses of monopoly. At first the Government tried persuasion and pressure. The result was that, very grudgingly, the council at last allowed the display of prices in the shop windows of opticians. That was a very small beginning towards real competition. Even now price display is not universally practised.

In 1982 when the Office of Fair Trading highlighted in a report the lack of real competition and the room for lower prices of spectacles, the Government clearly despaired of the General Optical Council. They began to amend the law to take regulation out of the hands of the council. The result of that amendment is now contained in Part IV of the present consolidation Bill: powers for the Secretary of State—not the optical council—to make rules about sight prescriptions, sale of spectacles by non-opticians and unrestricted sale of, for example, the reading spectacles championed by the noble Lord, Lord Rugby.

At that point, as we understood it, the Secretary of State wanted to go further. He wanted to allow people further freedom; that is, freedom to choose a simple, cheap refraction test instead of the present test which is supposed to include a very preliminary medical check of the eyes. A Back-Bench committee of Conservative Members in another place jibbed at this proposal and it was postponed. The Minister fled the battlefield.

However, this change must come. It will have a further effect on the optical council. I noticed that the Prime Minister was photographed at the Conservative Party conference having her prescription provided by the new high-technology machine called an autorefractor, which is used in tandem with an autotester to give normally a foolproof automatic print-out of the sight correction needed by the person who looks into the machine.

So far as I can see, Clause 26 of the Bill enables the Minister, by way of regulations in the future, to allow exactly this kind of simple refraction test. Therefore, once again we shall be diluting the powers of the optical council. However, such a new test may go some way towards preventing the allegations of over-prescribing which have been featured on television and, for example, in an article by Mr. Adam Raphael, the distinguished correspondent, which appeared in the Observer on 3rd September. In the article he described graphically how his daughter was wrongly, and more than once, told that she needed glasses. Moreover, when he complained to the consultant and asked him to examine the child he was told that opticians were in the business of selling spectacles and, You go in with a headache and you come out with glasses". That is a bad commentary as regards the state of the profession.

The end result of these amendments to the Opticians Act made in the 1980s is that the optical council—I hope the noble and learned Lord the Lord Chancellor will comment on this—now looks rather like a stranded whale. It has pages and pages of legislation about its membership and its disciplinary role; but it has lost, and will lose even more of, its other powers. At present it is undertaking a review of the optical services. I hope that that includes the issue of whether sight testing and selling of spectacles should be finally separated much more clearly. I also hope that an examination of the council's own role will be undertaken to see whether all its paraphernalia of discipline, committees and rules are now top-heavy, especially with automation so clearly on its way for technical testing.

We shall, subject to what the noble and learned Lord the Lord Chancellor says, be returning to this battle in future years. Prices of spectacles are moderating to some extent; but spectacles are still too expensive, as the price of cheap reading glasses clearly shows. For example, an average pair of prescription spectacles costs the optician between £12 and £20. They are then sold on to customers at £60—today's average price—£80 or even £100. That represents a 300 per cent., a 400 per cent. or a 500 per cent. mark-up.

Competition has a long way to go. Perhaps the advertisement featured in this weekend's newspapers—offering 25 per cent. off the price of all frames at Boots the chemist—will be followed by others. That certainly ought to be the case. As I said, we have a long way to go. I am sorry to see that, in a sense, the Government are perpetuating the present situation by means of the present Bill.

Viscount Montgomery of Alamein

I rise to support the remarks made by the noble Lords, Lord Rugby and Lord Northfield. Both noble Lords have carried out valiant work over a long period to try to eliminate the iniquitous monopoly which has been enjoyed by opticians in general. It seems to me that their work is worthy of enormous support by the present Government. Hitherto support has been given only in a somewhat half-hearted manner. I hope that my noble and learned friend the Lord Chancellor will be able to say something constructive on this issue today.

As an alternative, I venture to suggest that my noble and learned friend has been considering for some time—I believe he has set up a committee—the repeal of irrelevant and outdated legislation. It could be that the measure which we are considering today is an early candidate for inclusion in that category of laws. It may be that I am anticipating a little too far in this respect. However, I should like to think that at least we may make some progress today and that we may hear from him to the effect that these monopolies will not be allowed to be perpetuated. I also hope that the work which has been achieved with great diligence by the noble Lords, Lord Rugby and Lord Northfield, will be observed with great care and attention.

The Lord Chancellor

I must say first that this Bill is intended to consolidate the existing law with only such changes as are necessary to an appropriate consolidation as recommended by the Law Commissions; that is, the Scottish Law Commission and the Law Commission. Therefore, there is no question of any change of policy in relation to this matter represented by this Bill. But, as has been pointed out, there have been many changes in the legislation affecting opticians over the years, and for the clarity of the statute book it is only right that these should be brought together. That action will do nothing except make the statute book better than it was before.

If anyone wishes to have an Act repealed, that person must take the necessary steps in Parliament. This is not the place for repeal of any of the Acts being consolidated. We are at the moment in Committee endeavouring to ascertain whether this is a genuine consolidation or something more. I would regard it as absolutely plain that this is a genuine consolidation. I hope fairly soon to move some technical amendments to give effect to consideration of this Bill by the Joint Committee. It has also been considered by the two Law Commissions since the Joint Committee's hearing.

It is plain that the Government are generally committed to the promotion of competition. I have already had a certain responsibility for seeking to bring such principles into certain areas. But that does not mean that it is an appropriate time or place for me to make any policy announcement in relation to the legislation affecting opticians. All I am seeking to do is to carry out an important improvement to the statute book. One of the results will be that anyone who consults the statute book from now on, assuming that the Bill is passed, will have a better appreciation of the present law affecting opticians. I shall see to it that what has been said is brought to the attention of my colleagues in government who have responsibility for policy in this area. Apart from that, I feel there is no other observation that I can properly make.

Clause 1 agreed to.

Clauses 2 to 39 agreed to.

Schedule 1 [Constitution Etc. of Council]:

The Lord Chancellor moved Amendment No. 1: Page 31, line 32, leave out ("and the numbers and qualifications of members").

The noble and learned Lord said: In moving Amendment No. 1 I should like to speak also to Amendments Nos. 2 and 3. The purpose of the Bill is to consolidate the legislation relating to opticians. The Opticians Act 1958 provided for the establishment of the General Optical Council as the body to regulate the opticians' profession. Schedule I set out the original constitution of the council and gave the Privy Council power by order to alter, the membership of the Council and the numbers and qualifications of members". It also has power to, make consequential alterations to the membership, and qualifications of members", of the council's committees. The Privy Council has exercised this power from time to time, and the present membership is set out in Schedule 1 to the Bill.

Paragraph 1 of that schedule lists groups of persons who together make up the council. Under sub-paragraph (a) the Privy Council nominates six persons; under sub-paragraph (d) six are nominated by certain examining bodies. Paragraph 4 lists these bodies. The Law Commission and the Scottish Law Commission made certain recommmendations about this consolidation. They were considered in the Joint Committee and no point arises on this now. But the Joint Committee raised a further point. This has been considered by the Law Commissions, and they in turn made a further recommendation. Since this is of some importance, I shall, with the Committee's permission, read what the two Law Commissions said. The recommendation is headed: Recommendation supplementary to the Report of the Law Commission and the Scottish Law Commission on the Opticians Bill (Cm. 738.) These recommendations are normally made before the consolidation is introduced. The Bill as introduced takes account of their recommendations. However, in this case the one I am referring to is a recommendation made since the Joint Committee considered the matter.

The Law Commissions said: In their report on the Opticians Bill the Joint Committee on Consolidation Bills included the following observations—The Committee consider that the power of the Privy Council under paragraph 13 of Schedule 1 to the Opticians Act of 1958 to alter the list of examining bodies in paragraph 4 of that schedule is open to doubt and that the legislation should be amended to remove such doubt. Paragraph 13(1) gives power to alter 'the qualifications of members of the Council'. The question which we understand to have troubled the Joint Committee is whether this phrase simply refers to the characteristics of individuals or whether it is also part of a person's qualifications that he is nominated by a particular person or body. Though the power seems broad, we agree with the Joint Committee chat there is some scope for uncertainty and that the point should be clarified. We think however that amendments should also cater for nomination by non-academic persons or bodies. Paragraph 1(a) of the Schedule gives such power to the Privy Council. We recommend accordingly".

The Committee will see that Amendment No. 1 takes out the reference to the numbers and qualifications of members of the council. Amendment No. 2 deals with the committees. Amendment No. 3 sets out expressly the kinds of alterations that can be made. The Law Commissions have taken up the point made by the Joint Committee and have considered and recommended supplementary to their main report that this would be a suitable matter to be dealt with in a consolidation in order to achieve a proper consolidation. With that explanation, I beg to move.

3.15 p.m.

Lord Mishcon

Quite often when we have considered the consolidation of Bills we have mentioned the committee of our Members who together with those of another place make up the Joint Committee on Consolidation Bills. As somebody who has sat on that committee perhaps I may say that it is not the most interesting committee of your Lordships' House. However, the members of it—as I am not a member of it now I can say this with proper sincerity and modesty—work extremely hard, always under an able chairman who is either a Law Lord or a retired Law Lord. It should be noted on this occasion that it is because of the care of the committee that the item mentioned by the noble and learned Lord has come to light. It is a perfectly proper point. Indeed, had it been ignored it might well have led to difficulty later on. I believe that for one moment we should pause and possibly think with gratitude of the work that is done by a not very glorious but extremely useful committee of this Chamber and of another place.

Lord Northfield

The report of the Joint Committee seems to be mainly concerned with the powers regarding universities and teaching departments. Some may no longer have courses in optical matters and other, newer universities may have them and may need to be added to the list. That point seemed to concern the Joint Committee. However, the amendments seem to go much further. Unless I am very much mistaken, they seem to give a much wider power to the Government through the Privy Council to alter the membership and possibly the balance of the General Optical Council. Is that the case? If it is the case, does it mean that the present balance in the General Optical Council could be changed?

At the moment 22 of its members are opticians, dispensing opticians, examining bodies and medical practitioners, and only six persons, of whom some, I suppose, could be lay members, are nominated by the Privy Council. Could the amendments be used to give a greater representation of lay people on the General Optical Council? I should certainly be in favour of that.

The Lord Chancellor

The report of the Joint Committee to which the noble Lord, Lord Mishcon, referred expressed it thus: The committee draw attention to paragraph 13 of Schedule 1 to the Bill. Paragraph 13 deals with the power of the Privy Council to alter the membership of the General Optical Council. This paragraph consolidates the relevant provisions of the Opticians Act 1958. The committee consider that the power of the Privy Council under paragraph 13 of Schedule 1 to the Opticians Act 1958 to alter the list of examining bodies in paragraph 4 of that schedule is open to doubt and that the legislation should be amended to remove such doubt". The amendment gives effect to that and makes it clear that the Privy Council may make alterations in respect of these matters in this way.

I join heartily in what the noble Lord, Lord Mishcon, said about the Joint Committee. I served for a short time on that committee; I also served for a short time as its chairman before I found myself in another situation. The committee does a great deal of extremely important work, not loudly sung, as the noble Lord said, but requiring a great deal of application. I am pleased to say that in the presence of the noble and learned Lord, Lord Brightman, who instructed me in the committee's work and who was most conscientious and attentive towards it.

As I said at the outset, the consolidation, and the amendments in particular, are not intended to effect any real change in the law, but merely clarify the powers originally conferred by paragraph 13.

Lord Northfield

I beg the noble and learned Lord's pardon, but he has not answered my question. He may have intended to give powers to alter the people nominated by the examining bodies. But does not the amendment as drafted give the Privy Council much wider powers to recast the membership of the General Optical Council, if it so desires?

The Lord Chancellor

Paragraph 13 reflects existing law. It gives the Privy Council a power, after consultation with the council and any other body or person whom it thinks fit to consult, to make such alterations in the membership of the council, and the numbers and qualifications of members, as may be expedient in view of changes in circumstances.

The doubt which arose in the Joint Committee concerned the scope of that phrase. The phrase arises in a power to alter the membership of the council as well as its committees. The amendment seeks to make clear what that power is. The power applies to the council as well as to its committees. All I am saying is that what we propose makes the present position clear and would allow the Privy Council, if so advised after consultation, in the terms of Amendment No. 3, to make alterations not only as to matters which were thought to be covered, but alterations relating to the numbers of members, the qualifications which a person must have to be a member and who may nominate members. The result is that no change has been made. We are clarifying what we believe the Privy Council's power to have been in that connection. I hope that I have answered the noble Lord's question.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 2: Page 31, line 34, leave out ("to the membership and qualifications of members of") and insert ("in relation to").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 3: Page 31, line 36, at end insert— ("(1A) In sub-paragraph (1) above "alterations in the membership of the Council" means alterations—

  1. (a) as to the numbers of members;
  2. (b) as to the qualifications which a person must have to be a member; and
  3. (c) as to who may nominate members.").

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

House resumed: Bill reported with amendments.