PUBLIC HEALTH (SCOTLAND) BILL [Lords] (Hansard, 13 November 1945)

§ Colonel Thornton-Kemsley(Aberdeen and Kincardine, Western)
On a point of Order, Mr. Deputy-Speaker. Before the Joint Under-Secretary of State for Scotland (Mr. Buchanan) speaks to this Bill, could he or you give some direction to the House? There is in front of us an important Bill affecting the health of Scotland to which, as far as one knows, it is proposed to give a Second Reading in the space of 42½ minutes. Can we be given any indication if it is the intention of the Government to get the Second Reading tonight?

§ Mr. Deputy-Speaker (Mr. Hubert Beaumont)
That is not a point of Order, and it is a matter with which I cannot deal. It is within the competence of the House to decide. Mr. Buchanan.

§ The Joint Under-Secretary of State for Scotland (Mr. Buchanan)
I beg to move, "That the Bill be now read a Second time."
May I say to the hon. and gallant Gentleman that it would have been quite easy for the Government to have suspended the Rule tonight? I suppose, if the hon. and gallant Gentleman wishes to have the Rule suspended, we can always do it. So far as I am concerned, I am a servant of the House—

§ Colonel Thornton-Kemsley
And of the Government.

§ Mr. Buchanan
No, I am a servant of the House. At least this can be said for me, that I am a House of Commons man. I thought this Bill was very non-controversial. If the Debate is to be prolonged, those who wish to prolong it must take the course themselves. I have nothing to say either for or against. If they wish to delay it, I cannot stop them; it is for them to decide, not me.
This Bill was introduced in another place and has passed through all its stages there without any Amendment. So far as I have been able to make inquiries, it raises no controversial question. In fact, the only change of any substance which it proposes to make in the law of Scotland is to empower the Secretary of 2019 State to make Regulations for medical control at airports as a precaution against the spread of infection either in this country or in countries abroad. The purpose of the Bill, therefore, is to control the spread of infection at airports and to save our own people at home or abroad. The Minister of Health has that power in England under the Public Health Act, 1936, Section 143, and all that we are seeking to do—which I thought was not a question of great heart burning—was to make Scotland in this respect equivalent to our neighbour south of the Border. Unfortunately we have no such power, as far as I can gather, in any of the Scottish enactments. Before the war there was no international airport in Scotland and the need for a similar power did not, therefore, arise. Modem aviation has opened up new possibilities, and if airports like Prestwick are to develop, there must be provision for proper medical control at them.
The Government have obligations under the International Sanitary Convention for Aerial Navigation, and they must be able to carry out their obligations. Those are the reasons for the introduction of the Bill. We could have introduced a Bill which did no more than amend, in detail, the Scottish Public Health Acts, to cover aircraft, but it would have produced—and here we would have been subject to very serious criticism I think—a bad example of legislation by reference, which everybody dislikes and which would be very difficult for most people to follow. We have thought it desirable to produce a clearer Bill, a more useful Bill, by taking the opportunity to bring up to date the whole code in the Scottish Public Health Acts which deals with the Secretary of State's powers to make Regulations for the prevention of the spread of epidemic, endemic, or infectious disease. These powers are at present to be found in Part IV of the Public Health (Scotland) Act, 1897, and they are also found in the Public Health Act, 1904. This latter Act, which relates to dangers to the public health from shipping, applied to the United Kingdom, and was repealed for England and Wales in 1936 by the Public Health Act of that year. The present Bill reproduces, in up-to-date form, the provisions of these previous Acts, now 50 years old. A few provisions, which are obsolete, are to be 2020 dropped. A few minor Amendments are to be made, and, of course, it extends the Regulation-making power to cover aircraft.
The result is that if the House approves, Scottish provisions, in this respect, will be similar to those in the English enactments—and this is desirable where obligations under an international convention are involved—and procedure will be modernised. It would also make a small, though useful, contribution towards the eventual consolidation of the Scottish Public Health enactments. Among the minor changes, I would call attention to Subsection (6) of Clause 1 which proposes that the Secretary of State's Regulations should be laid before Parliament. Under the present law, Regulations of this kind merely have to be published. We have improved it to the extent that Regulations have now to be laid before this House, and it is in accordance with modern practice, and the wishes of this House, that this should be done.
To summarise, the Bill provides for medical control at airports in Scotland, and it consolidates and brings up to date what already exists. It brings these provisions into line with the corresponding provisions for England. The Bill confers no new powers on the Secretary of State, except with regard to making Regulations for the medical control of airborne traffic. No new power is given to us. I took the opportunity, because the matter was raised with me, to check that up, and the words we use in this Bill are the words, without any alteration, as taken from the Public Health (Scotland) Act, 1897. The Bill confers on the Secretary of State no new powers whatever, except in regard to airports, but there it only gives us the powers which the English have had since 1936, and which we think are necessary now. It confers no new power on local authorities. A local authority, as a result of this Bill, gets no direct power at all. I trust, with this explanation of the Bill—a Bill which, in modern life, is desirable and necessary—that this very small, but, I think, rather useful Measure, will be given the same hearty passage through this House as it was given in another place.

§ Mr. J. S. C. Reid (Glasgow, Hillhead)
I do not think anyone, in any quarter of the House, would object to the Gov- 2021 ernment taking powers, similar to those which they have at present in other respects, for application to aircraft, and that is the main object of the Bill. But I am much afraid that the hon. Gentleman is, perhaps, not entirely accurate when he says that, as the result of the transformation from the old 1897 Act to Clause 1, the legal position has not been materially changed. Let me try to explain it in this way. Looking at this Bill—and it is at this Bill alone we must look—there is nothing in it which limits the general terms of Clause 1 (1, a). Therefore it would be competent under this Bill, as I read it—the Lord Advocate, no doubt, will give us his view either now or later—to deal with all the most vexed questions—venereal disease, vaccination, milk supplies—all the things that have caused, perhaps, more controversy in the past than any other subject which has occupied public attention. I shall be surprised if anybody tells me that, under this Bill, it would not be possible to remodel the whole of the Regulations for venereal disease, and to extend them very materially, to remodel the law about vaccination, and to remodel the law about milk supplies. I am sure the hon. Gentleman will get himself into trouble if he takes power of that kind, because he will be asked to do things, and he cannot say, "I have no power." I do not think he wants to do these things, or to embarrass himself with power to do them, and, therefore, I suggest he should make it clear that he is not taking that power.
He says, quite truly, that the words used are the same words as in the 1897 Act, but they appear in a different context. The hon. Gentleman will realise that the words in the 1897 Act appear in only one part, which is headed "Epidemic Diseases." It is true that the Section goes on to talk of endemic diseases, as a whole. It is difficult to say what that Act means, but, giving it the best attention I can, I am fairly sure that any Regulation made under the existing Act to deal with the wide questions I have just referred to, would be attacked, and probably attacked successfully, as ultra vires of the rule-making authority. Therefore, what the hon. Gentleman is doing is to transfer a situation, where it will probably be ultra vires to make these regulations, into a situation where it would be plainly intra vires to do so.

§ Mr. Gallacher (Fife, West)
Why does the hon. and learned Gentleman not speak Scottish when this is a Scottish Debate?

§ Mr. Reid
I am trying to be short, and it so happens that it is easier to express in legal phraseology, shortly, than it is to express these things in popular phraseology. Had I a few more minutes to spare, I should be only too glad to use words with a more popular appeal. I cannot ask the right hon. Gentleman the Lord Advocate to express his view here and now on the question; it would not be fair to do so. I think I am right in saying that the Government do not want to embarrass themselves with these powers, and, therefore, if they will give us an undertaking to make certain on the Committee stage that they are not embarrassing themselves in that way, we shall certainly not seek to hold up the passage of this Bill, because its main object is a good object.
If by chance we cannot get that, and there is any difficulty about it, then, I am afraid, we cannot agree to a Second Reading this evening. I hope that we can get an assurance on the lines which I have indicated, namely, that it will be made quite clear in the Committee stage that there is no intention to have such wide powers as would enable the Government to do the things to which I have referred.

§ Mr. Gallacher
There is one question which I would like to put to the Minister concerning the penalty for a first offence of £100, and, for a continuance of an offence against the regulations, of £50 a day. Will any consideration be given, when the regulations are drawn up, to those organisations or people who have certain conscientious objections to registering? It would be undesirable to have a case running on at a cost of £50 a day, as we have had in connection with other matters.

§ The Lord Advocate (Mr. G. R. Thomson)
With regard to the point raised by my right hon. Friend, I think that I can safely say that we do not want to make any innovation in the law. The situation has not changed since 1897, so far as the wording is concerned, and it is not our 2023 desire to utilise this new Bill to extend the scope of the 1897 Act. We are perfectly prepared to keep in view in the Committee stage that no advance is made on the position, as laid down.

§ Mr. J. S. C. Reid
Would the right hon. and learned Gentleman agree to this slight extension of what he has suggested: that he should make it clear, whatever the 1897 Act says—because there may be doubt about what it means—that he will now exclude from the powers under this Bill, the power to do the kind of thing to which I have referred?

§ The Lord Advocate
It may be fairly difficult to limit the scope of this new Bill in such a way, especially when one keeps in view that the previous Act has been functioning successfully for nearly 50 years, without any of those fears being realised.

§ Mr. McKinlay (Dumbartonshire)
Can we be sure that there is no alteration in the general law? I would like to know this for my own information Clause 1 (3) states: "Regulations made under this section shall specify the authorities, whether local authorities or port local authorities, by whom they are to be enforced and executed, and may also provide for their enforcement and execution by officers of customs and excise and officers and men employed in the coastguard: Provided that nothing in such regulations will authorise any such authority, officer, or person to institute proceedings for an offence against the regulations. Who is to institute the proceedings? Is that to be the sole prerogative of the Secretary of State? What is done under the Act of 1897? Do I take it that there is no question of giving additional duties under this short Bill. I would like an assurance from the Lord Advocate, on the enforcement of the Measure, as to who is the person authorised to take decision—the port medical officer, the local authority or the Secretary of State.

§ Mr. Buchanan
The person to take action is the competent person who takes action in almost every case in Scotland, the procurator fiscal. As I understand the position, it will be for the fiscal to take the necessary action against anyone who breaks the law.

§ Mr. McKinlay
I want to make sure that there are no additional duties put on the customs and excise men under this Bill.

§ Mr. Buchanan
So far as I understand it, the fiscal would take the necessary action on the advice of the local authority who administer the regulations.

§ Commander Galbraith (Glasgow, Pollok)
I am rather concerned at the position at which we have arrived. To my mind, it is perfectly clear that under Clause 1 the Secretary of State can make regulations of any kind whatsoever. In arriving at that conclusion, I went to the trouble to find out from the dictionary exactly the meaning of the words "epidemic" and "endemic." The latter word I find is "Anything that is regularly common among the people." In that case any disease that is "regularly common among the people" can be included. The Lord Advocate has not denied that these powers would be possible under this Clause as it stands. Therefore, I feel we must have an undertaking from him that he will find words before the Committee stage which will limit the powers which are given under this Clause 1. If we can have that definite assurance the Bill will go through its Second Reading now; otherwise, as my right hon. and learned Friend the Member for Hillhead (Mr. J. S. C. Reid) has said, we shall have to oppose it. I do not think anyone who looks at that Clause can possibly deny what my right hon. and learned Friend has said, and in reading the Act of 1897, in particular Clause 79, one sees the limitations which are there imposed, and although the words which appear in this Bill are the very words which appear in Section 78 of the Act of 1897 I suggest that those are limited. Unless, therefore, we can have some definite assurance or some definite denial of what we have suggested I am afraid we must oppose the Second Reading.

§ Mr. Buchanan
If I may again have the leave of the House to speak, may I say to my hon. Friend that if the hon. and gallant Gentleman wishes to oppose the Bill I do not intend to stop him from doing so. It is within his rights. All I want to say is what I have said already, that we have no intention, either by deed or word, of making this Bill go one iota 2025 further than the 1897 Act went. That is as clear as I can make it. I am not prepared, standing here, to give him a promise to exclude this or that, but I have stated what is our intention, and if words can be found which will make clear what is meant here we will insert them; but I want my words to be taken seriously and I am not prepared to give any undertaking in such a fashion without thoroughly examining it. I want the 1897 power. I do not want us in the treatment of this matter to be worse off than our friends South of the Border. The Government have no intention of asking for anything more in this Bill.

§ Mr. J. S. C. Reid
I think I see a possible way out of the difficulty. If the Government can find suitable limiting words then I have no doubt they will put them in, but supposing they cannot find suitable words, will they agree that until final codification takes place we should revert to the existing position under the 1897 Act and do what I agree would not be altogether desirable, make this a one Clause Bill simply adapting the existing powers to the aircraft problem? It is a very bad thing to codify and not to know what your codification is. Will the Government do one or other of two things, cither find proper words for this or, if they cannot do so, revert to the 1897 position, unsatisfactory though it may be, until we can put things on a proper basis?

§ Mr. Buchanan
Again, if I may have the leave of the House to speak, I would say that I am doing my best. So far as I am concerned the position is that I will try to find the requisite words. As to the second point, I am not promising to withdraw. I am as ready as any man to try to make the position dear, and that is as far as anybody can reasonably be asked to go and I cannot be pressed to go any further.

§ Colonel Thornton-Kemsley
I find this position is most unsatisfactory. We on this side of the House have nothing but good will for a Scottish Bill which limits the intention to the regulation of people landing by aeroplane in Scotland. We all want to see that position made as safe as we can, because we do not want diseases brought here. There are in paragraph (a) of Clause 1 (1) very much 2026 wider powers than the Government are asking for. The position has been made perfectly clear and all that we on this side of the House ask is that we should be given some assurance that this Clause shall be limited. Surely it is not beyond the wit of the Government to find words to alter paragraph (a) of Clause 1 (1) to meet our point. If on the Committee stage they can meet that point I am certain that we shall all agree with them, but I ask the Under-Secretary to believe that there is nothing but good will on this side of the House for what he has asked, that is to say, a small Measure to regulate the position of people arriving by air in Scottish airports. When he says that he and the Lord Advocate do not intend to use those powers in a wider way we are bound to point to the wording of the Bill, which is perfectly clear: Power is to be taken by the Secretary of State for Scotland with a view to the treatment of persons affected with any epidemic, endemic or infectious disease. If this is taken literally, those powers ought to be limited. That is the only point which I and other hon. Friends on this side of the House want to make and I hope that, even at this late stage, it may be possible for the Under-Secretary of State or the Lord Advocate to give the assurance asked for by my right hon. and learned Friend the Member for Hillhead (Mr. J. S. C. Reid).