CLAUSE 2.—(Substances to which this Act applies.) (Hansard, 18 June 1947)

§ Mr. Christopher Shawcross (Widnes)
I beg to move, in page 2, line 12, to leave out from "other," to "as," in line 13, and to insert "medicinal substances."
I am certain I shall receive as much support for this Amendment from the other side of the Committee as from this side—if not more. The purpose of the Amendment is to enlarge the control which the Bill gives to the Minister of Health beyond the narrow definition it now contains, namely, that the substances apart from penicillin itself arc such anti-microbial organic substances as are produced by living organisms. I say it should he such other medicinal substances as the Minister may, after consultation with the Medical Advisory Council, prescribe. There are two objects in this. The first is to some extent intended to be covered by the next Amendment but one on the Order Paper in the name of the Minister of Health. I do not know if I shall be in Order in anticipating that. The first object of my Amendment is to make the definition wider to include anything which would not come into the too narrow definition which is now there. This is a technical matter, and one on which I hope hon. Members who have the technical knowledge will enlarge. The second object is that the Minister should be given control not only over penicillin and kindred subjects, whatever they may be, but also over all other medicinal substances which might be exploited in the same way in which it is feared penicillin would be exploited if it were not controlled.
2155 On the Second Reading of this Bill I was obliged to compress my remarks, and they were misunderstood and had some unfortunate results on hon. Members opposite. What I said was that the patent medicine industry—and I repeat this now to explain my Amendment—was probably the largest and most harmful and certainly the most shameful racket ever organised by private enterprise. That was not meant to be a criticism of all patent medicines, much less an attack generally on private enterprise. There are good medicines and bad. What I am attacking are the quack remedies, like iodine belts and penicillin lipsticks. That is a matter of major importance, and it may be felt by the Committee that it should not be introduced by a side wind into a Bill designed to cover a much smaller field. But I think it is high time attention was drawn to it, and I hope that as a result of my moving this Amendment, whatever may be the technical aspects, whether they are covered by the Minister's Amendment or not, that the Minister may make a statement as to whether on the Report stage or later by other legislation he will take control of what is admittedly a major evil, which has been dealt with on a high level—but never properly dealt with by this House—for the last 30 years.
One remembers the famous Red Book, a copy of which I have here, "Secret Remedies" published by the British Medical Association. More recently in Lancashire one of whose constituencies I represent, a county in which this racket is rife, one of the foremost medical authorities of this country, Professor Henry Cohen of Liverpool, has in public speeches and writings been carrying on a campaign against this admittedly devastating evil. More recently still, the report drawn up after long consideration by the Pharmaceutical Society has been presented to the Minister of Health by the hon. Member for Putney (Mr. Linstead) and is at the moment within his consideration. Extracts have been published by the Pharmaceutical Society although the whole report is still confidential. All its conclusions show that this is an urgent topic, a topic of great importance, a topic which should be dealt with much more urgently than penicillin, which this Bill, as at present constituted, covers 2156 alone. It may be—and I would willingly ask leave to withdraw—

§ Mr. R. S. Hudson
On a point of Order. I confess when I first read this Amendment it did not occur to me—but it has been made clear since the hon. Member moved it—that the scope of the Amendment as he interprets it is well outside the Bill, and I venture respectfully to suggest that it is out of Order.

§ The Chairman
I understand the point of the Amendment is to substitute "medicinal substances" for the rather long descriptive matter in the Clause. It is very difficult to say whether the hon. Member's Amendment is outside the Bill. If the hon. Member would confine himself to substituting one form of words for the other he would be within the Bill but he seems to me to be going into other matters. If he would leave it as a question of substitution alone, I think he is in Order.

§ Mr. Shawcross
I was going to conclude by saying that for the reasons that I have explained, first the technical reasons—though these may be covered by a later Amendment—and the wider reasons in regard to medicinal substances, and having regard to the general purpose of this Amendment which is to make for simpler phraseology, my Amendment should be substituted for the somewhat involved formula now in the Bill.

§ Mr. R. S. Hudson
Further to my point of Order. I should like to point out to you, Major Milner, that as I understand it "other substances" which are mentioned in the Title of the Bill are substances which can be produced synthetically to resemble substances which are produced by living organisms. The hon. Member for Widnes (Mr. Shawcross) quite clearly intended to include all sorts of other substances which do not necessarily bear any relation to substances produced by living organisms with which the Bill is concerned. Therefore, with great respect I suggest that it is clear that this Amendment goes a long way outside the Title of the Bill.

§ Mr. Shawcross
In my submission, it is quite clear that the Amendment I have proposed, in the way I have proposed it, is quite within the scope of the Bill, 2157 because, as I pointed out in my opening remarks the Bill, if amended, would read: The substances to which this Act applies are penicillin and such other medicinal substances as may be prescribed by regulations made…after consultation with the Medical Research Council. It would, therefore, not enlarge it beyond anything which was within the purview of penicillin and other substances.

§ Mr. Hudson
Surely if that had been the object of the promoters of the Bill, the Title of the Bill would have been the sale and supply of penicillin and certain other substances which may be prescribed after consultation with the Medical' Research Council. In fact, the Title is limited to certain other substances," which later, in a further Amendment, are defined as: a substance produced by living organisms. or any substance the chemical properties of which are identical with or similar to those of the substance so prescribed but which is not produced by living organisms.

§ Dr. Santo Jeger: (St. Pancras, South-East)
We have not come to that yet.

§ Mr. R. S. Hudson
Quite clearly that is the meaning of "certain other substances."

§ The Chairman
Where is the definition in the Bill itself?

§ Mr. R. S. Hudson
The Bill says: The substances to which this Act applies are penicillin and such other antimicrobal organic substances produced by living organisms… It is clear that the Bill intended to cover such substances and not those mentioned by the hon. Member for Widnes (Mr. Shawcross).

§ The Chairman
The Title of the Bill is clearly to control the sale and supply of penicillin and certain other substances. The Title does not say anything about those substances being produced by living organisms.

§ Mr. R. S. Hudson
It is in Clause 2.

§ The Chairman
I think the Amendment is in Order, but possibly some of the hon. 2158 Gentleman's arguments, some of which were of a very technical nature, were not in Order. However, I think the Amendment as such is in Order.

§ Mr. J. Edwards
With most of what my hon. Friend the Member for Widnes (Mr. Shawcross) said, I find myself in agreement. There is no doubt at all there are still widespread abuses connected with proprietary remedies which ought to be checked, but those substances are in a different category from those which we seek to control under this Bill. The substances covered by the Bill may give rise to serious danger to the general public if maladministered. Undesirable proprietary remedies are dangerous to the people who use them, but not dangerous in the secondary sense to the public at large, and all the substances with which we are concerned here are in the category of substances which are dangerous to the general public. It is for that reason that we want to take these powers. In any event, I would say to my hon. Friend that a different procedure would be needed if we were to deal with proprietary remedies. I think it would be inappropriate to try to extend this very limited Bill to cover a vast and ill-defined category which would not be, I think, amenable to the same degree of control. While my right hon. Friend is favourably disposed to further legislation to deal with proprietary medicines—though I have to say that there is.no prospect of early legislation on the point—I would ask my hon. Friend not to pursue this Amendment. The argument is perfectly valid on other grounds; but he is trying to do at the wrong moment and in the wrong say something with which I find myself generally in agreement.

§ Dr. Morgan
I am glad the Government have not accepted the Amendment though if there is anything that would make me agree with it, it is the peculiar, superficial explanation given from the Front Bench against it that at this late hour we are wasting time. I rise to oppose it on one ground. What are "medicinal substances"? Take lard—

§ The Chairman
Despite anything which the hon. Gentleman would like to take. I must point out that the Minister has replied, and I hope that we may now come to a decision.

§ Mr. Shawcross
With deference to my hon. Friends on both sides of the Committee, may I say the Parliamentary Secretary has not replied to my first point. The matter is of major technical importance to the Bill.

§ Mr. R. S. Hudson
I thought it might have been essential to discuss the meaning of "medicinal substances" when we got to the further Amendment on that point.

§ Mr. Edwards
I thought that it would not be in Order to anticipate another Amendment on which there can be a proper discussion of the first point mentioned.

§ Mr. Shawcross
Without conceding that the wide objects with which I sought to deal are not of much greater importance, I beg to ask leave to withdraw my Amendment.

§ Mr. Walker-Smith
I beg to move, in page 2, line 13, to leave out from the first "by," to the end of the Clause, and to add: Order in Council. (2) A draft of any Order in Council under this Act shall be laid before Parliament after consultation with the Medical Research Council, and the draft shall not be submitted to His Majesty except in pursuance of an Address presented by each House of Parliament praying that the Order be made. I hope to move this Amendment standing in the name of my hon. Friend the Member for Sutton Coldfield (Sir John Mellor) and myself far more briefly than was the case with the hon. Member for Widnes (Mr. Shawcross), who exhibited what I can only think is a family characteristic of having always to make a second or third speech in explanation of a first and at ever-increasing length. When the Parliamentary Secretary reflects upon the time, he may think how much it is added to by that characteristic exhibited by the two hon. Gentlemen. I think in moving this Amendment I can, as a result of the discussion we have had on the last Amendment, safely claim this: that the importance of these other substances will now be clear to every hon. Member. I am glad it is so because the Amendment I am now moving is concerned to give the House a greater measure of control over the prescribing of the other substances which the Minister is able to add under Clause 2. As the House will see, if hon. Members will be good enough to refer to 2160 Clause 2, as the Bill is at present drafted, these other substances, these anti-microbial organic substances, can be prescribed by regulations made by various specified Ministers. What the Amendment seeks to do is to substitute for these regulations which, as the House knows are subject to annulment by what is known as a negative Resolution of the House, the more formal procedure of Order in Council to be approved by an affirmative Resolution of this House. I think, indeed I hope, it will be a matter of agreement that where subjects of great importance are concerned, such as the adding of substances to those which can be controlled under this Bill, the House of Commons must be vitally interested. The only way they can properly exercise their control is by machinery of the kind we know as the affirmative Resolution.
My hon. Friends and myself, I think I may say, have some experience of the procedure of negative Resolution—my hon. Friend the Member for Sutton Cold-field (Sir J. Mellor) with assiduity and distinction, and myself in a more modest way. As a result of that experience we have come to the conclusion that there are certain disadvantages attached to Parliamentary sanction by negative Resolution, and therefore we seek to amend the Clause to make it subject to Order in Council the draft of which must be affirmatively approved by a Resolution of this House. I think that the importance of this Clause and the importance of the powers given under it fully justify the Amendment being made.

§ Mr. J. Edwards
I must resist this Amendment. We are accustomed to the two procedures of affirmative Resolution and negative Resolution, and since I do not think it is being argued that we must never in any circumstances use the method of negative Resolution, I think it falls to be considered whether it is appropriate in present circumstances to use the method which we suggest, or the more cumbersome system of affirmative Resolution. It does depend on the degree of importance we attach to discussions of these added substances as and when they may need to be brought within the ambit of this Bill. In my view this point is not of sufficient importance in the general scale of things to merit the use of the method of the affirmative Resolution with all that it means in Parliamentary time. I would ask the Committee to note that there is 2161 an excellent precedent for what we propose, inasmuch as this method has been used successfully in the Therapeutic Substances Act of 1925, which has been extended to cover a certain number of additional substances since the Act was first passed. I think if ever there was a type of case where it was appropriate to proceed by regulations subject to a negative Resolution, it is this type of case. I hope, therefore, that this Amendment will not be pressed.

§ Mr. Challen
I would like to make one point in answer to the speech of my hon. Friend who seems to think that our whole objection to this provision is on the point of the negative as against the affirmative Resolution. We have another objection to these orders which are to be made by Order in Council. Where are we getting to? We are getting to the point of a republican State where various Ministers and Departments are given powers to administer orders subject to such control as Parliament may exercise. The point my hon. Friend is trying to make in this Amendment is mainly that this should be done by Order of His Majesty in Council and that it is not right that this or that or the other Minister should make the Order. We prefer—it is constitutionally correct—that the Order should be made by His Majesty in Council. That is the point my hon. Friend is making, and I think the Minister ought to reply to it.

§ Sir J. Mellor
My support for this Amendment is strengthened by what the Parliamentary Secretary has said this evening. We have to be particularly watchful with regard to these regulations. It is not nearly so easy to watch them under negative procedure as when regulations have to be put down under affirmative Resolution. That is why we ought to have the affirmative procedure to make it as easy as possible for all Members of this House and those concerned outside the House to give the most careful examination to all regulations that are made. It is clear from what the Parliamentary Secretary said this evening that the Minister, if he controls a substance by regulation, will control it in all its forms and will control anything of which the substance is an ingredient. That being so I think we have to be extremely careful that great harm is not 2162 done by regulations which bring some substances under control. I am riot considering penicillin for the moment. There is a whole range of substances which may be brought under control by the Minister by regulation. If the negative procedure is employed a regulation may slip through the House without anyone being aware of the extent of the injury which it may do. It may bring a preparation of some substance under control that no one would have suspected it would be necessary to put under control or that the Minister might even want to control. But having controlled the substance, by the regulation he would control it in all its forms and regulations.
That is why we have to be particularly watchful and why we should have the affirmative instead of the negative procedure. This is an important step. It is an invasion of private liberty to bring in one of these regulations preventing people from buying some stuff without a medical prescription. It may be necessary. In fact I recognise that it is necessary to have some measure of control in the case of penicillin and it may be necessary in the case of other substances. But we ought to be careful in this House to see that no measure is taken or degree of control is employed which is not absolutely necessary. I think we ought to have the affirmative resolution because it makes it much easier to watch these regulations

§ Mr. J. Edwards
I beg to move, in page 2, line 16, at the end, to insert: and, where such regulations prescribe a substance produced by living organisms, the regulations may include any substance the chemical properties of which are identical with or similar to those of the substance so prescribed but which is not produced by living organisms. The purpose of this Amendment is to enable the Bill to cover synthetic substances similar to substances produced by living organisms covered by the Bill already. We are advised that is quite likely that substances with properties similar to those produced by living organisms may be synthetically produced, and since the use of such synthetic substances will involve the same dangers as those produced by living organisms, it is obvious that the Bill ought to be extended in the way we propose. Synthetic penicillin is already covered by the Bill because in the 2163 definition Clause we have given to penicillin the meaning assigned to it by the Therapeutic Substances Regulations and that definition includes synthetic penicillin, but other synthetic substances which are covered by the Bill, such as streptomycin, will be covered by the words proposed in this Amendment. I hope the Amendment meets the point of the hon. Member for Putney (Mr. Linstead) which he made on Second Reading.

§ Sir J. Mellor
Are we concerned with chemical properties at all? Are we not concerned with physiological properties? I am surprised to see the word "chemical" in this Amendment.

§ Mr. Linstead
That was the precise point I wanted to draw attention to. It would be well worth while looking at this again between now and the Report stage. One might have things with the same chemical properties but with different physiological properties. It is not the identity of chemical properties which is important; it is the identity of physiological properties which is important.