HC Deb 13 February 1939 vol 343 cc1436-46
The Deputy-Chairman

Mr. Storey.

6.16 p.m.

Mr. Garro Jones

On a point of Order. I understand that the Amendment which stands in my name and the names of some of my hon. Friends is not to be called—In page 6, line 1, to leave out from the beginning, to the end of line 35, page 7, and to insert: (1) On and after the first day of June, nineteen hundred and thirty-nine, a person shall not knowingly publish, or be a party to the publication of, any advertisement or announcement which holds out, refers to, or recommends any remedy, treatment, or preparation whatsoever to be used or applied externally or internally in connection with the treatment, relief, or prevention of cancer or the distinctive symptoms of cancer. (2) If any person contravenes any of the provisions of the foregoing Sub-section he shall be liable on summary conviction, in the case of a first conviction, to a fine not exceeding fifty pounds, and in the case of a subsequent conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding three months or to both such a fine and such imprisonment: Provided that nothing in this Section shall apply to any advertisement by any local authority or by the governing body of any voluntary hospital or to any advertisement sent only to duly qualified medical practitioners or to wholesale or retail chemists for the purpose of their business or to any advertisement published to any persons undergoing training with a view to becoming registered medical practitioners, registered nurses, or registered pharmacists, or to any advertisement published only in a publication of a technical character intended for circulation among persons of the classes mentioned in this proviso, or to any advertisement published with the consent of the Minister of Health or the Secretary of State for Scotland. (3) It shall be the duty of every food and drugs authority within their area to enforce the provisions of this Section. While I do not propose to insist, and much less to challenge your Ruling, I should be glad if you would give me your guidance on certain matters arising in connection with this Amendment. When I began to attempt to amend the Clause I found that by omitting the words "by him" in the first part, it was possible to reconstruct the Clause on much simpler lines. What is our position if, after we have laboured on a great number of detailed Amendments, we find that my contention was right? Our labours will have been in vain, and we shall be able to reject this Clause and accept mine only by acknowledging that our labours, which might have extended over many days, have been in vain. When we are dealing with a Bill as a whole we naturally take the Second Reading before we attempt to amend the Bill in Committee, but when we are dealing with a Clause it would seem that we invert that procedure. We take the Committee stage first and then the Second Reading—which is what the Motion "that the Clause stand part of the Bill" really amounts to. Is there no method by which we can challenge the principle of the Clause before we proceed to amend it in detail?

The Deputy-Chairman (Colonel Clifton Brown)

There is no other method. That is the Motion upon which one must challenge the whole of the Clause, and there is no other way.

6.18 p.m.

Mr. Storey

I beg to move, in page 6, line 3, to leave out "by him."

The purpose of the Amendment and of the three Amendments which follow upon the Paper—and which, for the convenience of the Committee, I hope you will allow me to deal with together, because they are consequential upon the first—are intended to strengthen the provisions of the Bill in relation to advertisements consisting of offers of treatment and remedies for cancer. I think the Committee will agree that the sick and the poor should be protected against unqualified persons who attempt to prey upon their fear and credulity. As the Clause is drafted, the prohibition applies only to the person who offers the treatment or the remedy and it does not apply to the person who aids and abets, such as the person who is the publisher of the advertisement. The Clause thus leaves a loophole which may defeat the purpose of the Clause. For instance, as the "Times" pointed out in a leading article, a quack residing outside the jurisdiction of the English courts may order advertisements by post and no one would be liable to prosecution under the Clause as it is at present drafted. Nor could the publisher be prosecuted under the common law as accessory to a crime.

The purpose of my Amendment is to make the publisher directly responsible, a principle which is already adopted by Parliament in the Venereal Diseases Act, 1917. That anyone connected with newspapers should seek to place restrictions upon them might at first sight seem strange, but I would remind the Committee that all reputable newspapers have for a long time refused to accept such advertisements. The Amendments which I am moving would strengthen their hands against those few publications which attempt still to profit by taking such advertisements, and would compel these papers to adopt a higher standard. For those reasons the Newspaper Society, which represents the whole of the provincial Press of this country, have considered the matter since I placed these Amendments upon the Paper, and they have expressed their complete approval. I hope that the Committee will agree to these Amendments.

6.21 p.m.

Mr. Garro Jones

In default of my own and, I think, better method, I support the proposal of the hon. Member for Sunderland (Mr. Storey). We are entitled to an explanation from the Minister as to how it came about that the Clause was placed before us in so lenient a form, as it applies to newspaper advertisements. It is, of course, very honourable in the Newspaper Society to wish to reform the law, and I readily acknowledge that so far as cancer advertisements are concerned both the provincial and the national Press can come into court with almost clean hands. I hope they will not come in a self-righteous spirit, because the vigilance which they extend to cancer advertisements does not extend to advertisements of other quack medicines. If the hon. Member will study the discussions on this subject in the legislative assemblies of Canada and Australia he will find that one of the greatest difficulties to enforcing provisions against advertisements of quack medicines arises in those countries by reason of the lax state of the law in this country.

The drafting of this proposal in this way seems to call for some explanation by the Minister. I want to read what the "Times" said about it. That newspaper does not advertise quack medicines for cancer or, I think, any other medicines of that character. It said: Close scrutiny of these Clauses shows that they leave certain loopholes which may seri- ously reduce the effectiveness of the law. Manifestly"— that is the word it used— if it is to be an offence for certain classes of ill-qualified people to advertise their untrustworthy wares it should also be an offence to abet them by publishing their advertisements. The "Times" thought that it was manifest that the offence of publishing should be joined to the offence of offering a quack medicine for treatment. How does it then come about that this was not also manifest to the Government? There has been a tendency on the part of the Government to legislate with tenderness towards the Press of this country. A Food and Drugs Bill was before us a short time ago. It was a very extensive, consolidating Measure, and included many valuable new provisions, including one of a similar nature against advertisements of adulterated medicines and so on. After constructing most careful safeguards for the public, what did the Minister do? He produced what is known as the Joker Clause and he let out the newspapers. He said that, provided such advertisements were accepted by a newspaper in the ordinary course of its business, no offence would be committed.

When we legislate on these lines, greatly as we may desire the favour or fear the frowns, of the newspapers, we ought to act without fear or favour. There is the tendency of the House and the Government, in spite of the crowded state of the legislative programme, to reform the Official Secrets Act and the Libel Act. Anything that the newspapers ask for they appear to be able to get. When legislation is being introduced for the protection of the public, safeguards for newspapers alone are put into the Bill. The Minister owes an explanation to the Committee of how it came about that the Clause was drafted in this way.

6.25 p.m.

The Attorney-General (Sir Donald Somervell)

Those who speak on Amendments from this Box are in danger of being attacked from one of two sides. If a Minister resists an Amendment he is asked: "What is the use of the Committee stage?" If he is prepared to accept an Amendment it is said: "Why do you produce a Bill before the House in such a state that it requires amendment in Committee?" The criticism to which we have just listened seems to fall into the second category. My right hon. Friend commends to the Committee this Amendment and the three following Amendments. In the Bill as drafted and introduced, the main and substantive offence was placed upon the originator of an advertisement. There does not seem to me anything particularly shocking in a provision which fixes the substantive offence on the originator and leaves to the Common Law principle of aiding and abetting people whose complicity is such as to justify proceedings against them on ordinary principles for aiding and abetting. My right hon. Friend agrees that this strengthening of the Clause is desirable.

I am bound to say that though the hon. Gentleman opposite may feel, as he does, that some criticism can be levelled against my right hon. Friend for introducing the Bill in this form, I believe that other hon. Members will feel that it has been an advantage to have this Amendment proposed by my hon. Friend, who is himself in touch with and concerned with the Press of this country, and that he should propose this Amendment with the full approval of the Press and commend it to the House in the terms which he has used. The point is quite simple, and my right hon. Friend commends all the Amendments to the Committee on the ground on which they were moved. I believe it is common ground and I hope that the Committee will approve of all the Amendments.

Amendment agreed to.

Further Amendments made:

In page 6, line 8, leave out from "description," to "in," in line 9.

In line 34, leave out paragraph (i).

In line 38, at the end, insert: but without prejudice to the liability of any other person."—[Mr. Storey.]

6.29 p.m.

The Attorney-General

I beg to move, in page 6, line 43, to leave out "to," and to insert: so far as was reasonably necessary to bring it to the notice of. This is a purely drafting Amendment. Sub-section (4, a) says that it shall be a defence for the person charged to prove that the advertisement to which the proceedings relate was published only to persons of "— certain classes. Strictly construed, that would make it an offence to publish in any way except to these classes of person. The Amendment proposed would make the paragraph read: that the advertisement to which the proceedings relate was published only so far as was reasonably necessary to bring it to the notice of persons. It is a small and rather technical point, but the words are obviously an improvement.

6.30 p.m.

Mr. Garro Jones

The Attorney-General may be correct in saying that the Bill as drafted might have been open to an unreasonably strict construction, but his ingenuity, when it comes to relieving his friends, knows no bounds, and it appears to me that this Amendment is open to an extremely generous construction from the point of view of advertisers. I would point out that a defence is provided in paragraph (b) of Sub-section (4) which entirely covers cases where it is necessary to publish an advertisement in a journal of a technical character having a limited circulation, and surely that gives adequate protection in the case of bona fide advertisements circulated to technical and qualified persons. If the Attorney-General could give us an example or two of the kind of advertisements that he desires by this Amendment to leave outside the Act, I should not feel it necessary to resist it.

6.32 p.m.

The Attorney-General

Sub-section (4) deals only with advertisements published in a publication of restricted circulation, and I think it can be reasonably claimed that an advertisement intended bona fide for persons of certain classes—for example, local authorities, registered medical practitioners, and so on—might get into the hands of certain people who were connected with those classes but who were not actually within the classes specified, or of others who might have to deal with the transmission of the advertisement to the specified body. In this Amendment there is no sinister intention, I assure the hon. Gentleman, to open any door by which the provisions of the Clause might be evaded, but it was felt, on scrutinising it, and the hon. Gentleman agrees, that as drafted the words were open to an excessively strict construction. I think the words it is proposed to insert will meet that difficulty and will make the Sub-section more clear.

6.34 p.m.

Mr. Garro Jones

I do not wish to press the matter unduly, but would point out that, if the publication accidentally came into the hands of someone other than the persons named in the Clause, it would be impossible to secure a conviction against the publisher of the advertisement if it were a mere leakage of a secret or an accidental occurrence such as a layman buying a medical journal; but that the advertisers may desire to advertise in a publication covering not only one of the technical or specialised classes, but the whole of them together—doctors, nurses, chemists, persons undergoing training to undertake any of these activities, or persons carrying on any business which included the sale or supply of certain appliances. They might advertise in any publication of a technical character. If, however, the Attorney-General is satisfied on the point, I do not intend to delay the Committee by pressing the matter.

Amendment agreed to.

Further Amendment made: In page 7, line 2, at the end, insert:

  1. "(i) members of a local authority or of the governing body of a voluntary hospital;
  2. (ii) (without prejudice to the generality of the foregoing sub-paragraph) persons concerned in making or carrying into effect arrangements under Section one of this Act;"—[Mr. Elliot.]

6.36 p.m.

Mr. Storey

I beg to move, in page 7, line 18, to leave out paragraph (c), and to insert: (c) that the said advertisement was published in such circumstances that he did not know and had no reason to believe that he was taking part in the publication thereof. The purpose of this Amendment is to give a defence to persons who act bona fide. Paragraph (c), as drafted, applies only to an advertisement in the package containing the article, but the Committee have now imposed a liability on the publishers of an advertisement relating to the cure or treatment of cancer, and it is only right that protection should be given to those who have no reason to believe that they are taking part in publication. For instance, in the case of a newsagent distributing a reputable paper, it would be manifestly unfair if, should that paper through an oversight publish a cancer cure advertisement, he was liable to prosecution. If, on the other hand, he was distributing a paper which had often been convicted of publishing such advertisements, then he would deserve no such protection. The purpose of the Amendment is merely to give protection to those who act bona fide, and I hope the Committee will agree to it.

6.38 p.m.

Mr. Garro Jones

May I ask the Attorney-General what would be the effect of this proposal if an advertisement, instead of expressly advertising a nostrum for the cure of cancer, advertised something for, for example, the cure or treatment of tumours or something of that kind? It appears to me that this provision might well be used as a defence in such a case, and such a form of advertising in this illicit way might evade the law by merely refraining from naming the disease. I do not wish to suggest that this is likely to be a prevalent practice; there are certainly not many reputable newspapers which advertise cures for cancer; but, after all, we are legislating to prevent the black sheep from carrying out this malpractice, and I should like to be assured that we are not leaving a loophole here.

6.39 p.m.

The Attorney-General

In order to answer the hon. Gentleman's question one must go back to Sub-section (1). He is supposing a case in which the advertisement does not in terms use the word "cancer," and, of course, the point arises, not only on this Amendment, but on the question of the substantive offence under the Clause. The words which we have already passed in Sub-section (1, b) enact that no person shall take any part in the publication of any advertisement referring to any article, or articles of any description, manufactured, produced, imported, sold or offered for sale by him in terms which are calculated to lead to the use of that article, or articles of that description, in the treatment of cancer. The case that the hon. Gentleman quotes would be dealt with under the construction of these words, which I think are sufficiently wide. The present Amendment is directed to a different object. It would enable a defence to be set up by someone who did not know and had no reason to believe that he was taking part in the publication of such an advertisement, and this case would not arise until one had decided whether, having regard to the words of Sub-section (1), it came within the Clause at all. If it arose, and, although the word "cancer" was not used, the terms of the advertisement were plainly such as to direct the mind of the ordinary member of the public to the fact that the advertisement was one for the treatment of cancer, I cannot think that the editor or person concerned would have much chance of convincing the judge that on that ground he ought to get off under this new Sub-section, which is really intended to meet, and which I think does adequately meet, the case where a man can say that in the circumstances he had no reason to believe he was taking part in the publication. I think the Committee would desire that in such a case the penalty should fall, and fall alone, on the person who was the originator of the advertisement.

Amendment agreed to.

Further Amendment made: In page 7, line 31, leave out from "apply," to the first "by," in line 32, and insert "in respect of any advertisement published."—[Mr. Elliot.]

6.42 p.m.

The Attorney-General

I beg to move, in page 7, line 33, at the end, to insert: or by any person acting with the sanction of the Minister. This will empower the Minister, if he considers it to be in the public interest so to do, to give a sanction which will exempt any person or organisation from the operation of the Clause. There was a similar provision in the Venereal Diseases Act, 1917, and there might be cases under this Measure in which it would be desirable to give such exemption.

Amendment agreed to.

6.43 p.m.

Mr. Garro Jones

I beg to move, in page 7, line 34, to leave out from the beginning to "to," and to insert: (6) It shall be the duty of the council of every county and county borough. This would make the Sub-section read: It shall be the duty of the council of every county and county borough to institute proceedings under this Section. On previous occasions, when we have been legislating along these lines, we have not only created the offence, but have laid a mandate upon some body to enforce the provision. For example, when we created a number of offences under the Food and Drugs Act, we gave the local authority the power, in addition to enforcing the provisions of the Act to take proceedings under that Act at its discretion. In addition to this assurance of effective action, we gave to the Minister power to substitute his own authority for that of the local authority should it default. The present Bill, however, as drafted, merely gives a power to the local authority to institute proceedings, but lays no duty upon anyone, and, if the Clause is not amended on the lines I suggest, much water will have flowed under the bridges, and perhaps many cancer cures will have been advertised, before any proceedings are taken. My Amendment would make it the duty of the council of every county and county borough to take proceedings in case of infringement of the Section.

6.44 p.m.

The Attorney-General

My right hon. Friend thinks that this would make an improvement in the drafting of the Clause. At present it is simply left at large, with a power to all local authorities. It is true that under the Food and Drugs Act the duty is placed on the appropriate authorities under that Act to institute proceedings when offences are committed. My right hon. Friend agrees with the hon. Gentleman as to the desirability of putting this as a specific duty on the cancer authorities, and, as I have said, considers that this will be an improvement on the Clause as drafted.

Amendment agreed to.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

6.45 p.m.

Mr. David Adams

As one who has been interested in public health questions for a long time, I look upon this Clause as extremely valuable. It is well known that there have been very widely spread advertisements professing to treat, and in some cases to cure, this terrible disease. I think the result of the passing of this Bill into law will undoubtedly be a saving of many lives [An HON. MEMBER: "And hard cash"] and, as an hon. Member observes, much hard cash which is spent as a result of these advertisements. It has been well demonstrated to-day, and I think it ought to be made generally public, that there is usually only one opportunity for dealing with cancer, and that is in its initial stages, where there must be diagnosis. X-ray examination, and radium or other treatment. Once the public recognise that this is the procedure that ought to be followed, many lives may be saved. We are on the right line, and it would be of general advantage to medical science if the principle contained in this Clause could be extended to cover other branches of medical treatment. I do not know what communications other Members have received since the Bill was introduced, but I have had many from constituents expressing the view that it would be a great hardship if there were to be a general attack on treatment by non-registered persons of this or any other disease. It is suggested that this would be an infringement of the right of the individual to seek treatment in the best possible field. I hope that this measure will be a great corrective to that point of view.