§ 8.40 p.m.
§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I beg to move,That an humble Address be presented to His Majesty, praying that the Order, dated 27th June, 1950, entitled the Labelling of Food Order, 1950 (S.I., 1950, No. 1061), a copy of which was laid before this House on 28th June, be annulled.The Select Committee on Statutory Instruments on 24th July reported this Order to this House on the grounds that its form and purport called for elucidation, and in view both of the fact that a mere glance at the Order shows that the Select Committee used the language of moderation in describing this extraordinary jumble of legislation and of the fact that so far as I am aware the Ministry of Food have taken no steps as a result of the Select Committee's Report, it seemed to me proper that on a Motion for annulment this evening this Order should be discussed by this House.
The grounds of the Select Committee's Report seem to be something of an understatement. The Order itself is some 19 pages long and is an extraordinary piece of elaboration. When one recalls that it is part of the law of this land, I think the time has come for a challenge to be made to legislating in this kind of way at all. May I, by way of example, quote some words from page 16 of the Order, to which I have already invited in another place the attention of the Parliamentary Secretary, as an example of the way in which legislation is now conducted? On page 16 appear these words:For the purposes of entry No. 5 above, the expression "flavouring" means any product which complies with the following conditions:That is part of the law of this country which we are all presumed to know. It seems to me an example of the chaos created by such an Order, an Order which requires to be understood not merely by lawyers but by those who trade in food, and also the difficulty, which results from that sort of legislation when it has to be understood by people who earn their living subject to its provisions. I hope the Parliamentary Secretary will tell us—leaving aside for the moment the merits or demerits of the provisions of the Order—that his Ministry are going to stop legislating in this incomprehensible and incoherent manner.
1986 but the expression shall be deemed not to include any preparation of yeast, coffee or chicory, any soft drink, or any substance prepared by the hydrolysis of protein-containing materials.
- (a) it must have aromatic properties;
- (b) where it is an ingredient of any food it shall have been added primarily for flavouring purposes and where it is packed for sale as such it shall be intended for use primarily for such purposes; and
- (c) it shall consist of an essential oil, natural gum, gum resin, oleo-resin, a chemical having flavouring property, or any vegetable extractive, or a mixture of any of these, and it may also contain one or more of the following (but no other) ingredients:
- (i) fruit juices;
- (ii) such other substances as are reasonably necessary to produce a solid, a solution or an emulsion from the aforementioned ingredients;
The first point to which I would venture to invite the attention of the House—it bears upon what I have already said as to the difficulty which this form of legislation imposes upon those concerned—is article 12. Perhaps I had better read the relevant passage, which is:Nothing in this Order shall relieve any person from complying with the provisions of any other Order or with the provisions of any Act of Parliament, Order in Council, regulation or byelaw for the time being in force, and in particular, where any provisions as to labelling of food appear in any other Order of the Minister, it shall be necessary to comply with the provisions both of such other Order and of this Order.That means, as I understand it, that the trader who, by a miracle of ingenuity, succeeds in complying with all the 19 pages of this Order, is even then not safe from prosecution because there may be some other Order, not even specified in this Order, which deals with the same subject, and for a breach of which he may be punished.
The Order purports, in part at any rate, to be a consolidating Order, according to the explanatory notes, but it seems monstrous that a provision such as article 12 should be included, under which it is made clear that this Order is not even the whole of the Orders on this subject but that somewhere, unspecified, a further law is to be found which also has to be complied with. I hope that when the Ministry come again to deal with this matter—I feel that the confusion which they have created will force that necessity upon them before very 1987 long—they will consider trying to get all the laws on this matter, at any rate all those made by regulation, into one complete, consolidating Order. I hope that they will not legislate by producing Orders of this kind, which purport to consolidate some of the law and deliberately leave out further Orders which may or may not apply.
Coming to the more detailed consideration of the parts of the Order I would ask the House to consider Article 4, which relates to, or at any rate is headed:Special requirements as to the labelling of certain liquors.By paragraph (g) it is provided that no one shall have in his possession for sale any liquor the label on which is,by any name or words calculated to indicate either directly or by ambiguity, omission or inference that the liquor has properties which make it beneficial for invalids or has tonic, restorative or medicinal properties, unless the liquor contains a substance or substances other than alcohol added in such quantity as to confer such properties.I should be very grateful if the Parliamentary Secretary would tell me whether the affect of that regulation is to make illegal the use, at any rate on a label, of the well-known expression "Guinness is good for you"? I understand that it renders completely illegal the use of the expression "Invalid port."
It seems somewhat oppressive to provide that where, as in both those cases, an expression has been in use for a good number of years, it should now be ruled out by this regulation. No doubt the Parliamentary Secretary will have means of telling the House what these regulations are intended to do, and whether, in the view of his Department they will have the effect I have described. At any rate, a cursory reading of the regulations raises doubts about the effect of them, whatever may have been the intentions of the Department.
Regulation 4 (e) appears to make it illegal to produce and label the liquor which has been known for many years as "champagne cider." I do not know whether that is the intention. [Interruption.] I gather that the hon. Member for Nottingham, South (Mr. Norman Smith), does not appreciate that beverage as do hon. Members who come from the West Country.
§ Mr. Boyd-Carpenter
Then the hon. Member should know better. That kind of perfectly harmless expression should not be prohibited. So far as I know, no good reason has been given for it.
§ Mr. Norman Smith
Is not the description "champagne cider" as about appropriate as the label "Democratic Tory"?
§ Mr. Boyd-Carpenter
I entirely agree with the hon. Member. Both expressions are wholly appropriate. Both indicate a winning commodity. I am grateful to the hon. Gentleman for his assistance. I should like to know from the Parliamentary Secretary first of all whether that is the effect of the provision and, secondly, if it is, why it has been inserted.
Other parts of the Order seem to call for some comment. Article 8 follows what now seems to be the invariable practice of these regulations by imposing on any offender in proceedings brought by the Ministry the onus of establishing his innocence. I am certain that the Parliamentary Secretary will reply that that has been done before. That is perfectly true, but it is not a valid argument. It is possible that in the height of the war when the administrative machinery of the country was strained to the limit it may have been thought right to impose such a liability upon a defendant in order to ease that strain, but that is quite a different thing from doing so now.
Under Article 9 a defendant who desires to establish a defence of three specified kinds cannot do so unless he gives notice in writing beforehand to the prosecution. That seems to impose a quite intolerable burden upon people who are charged with criminal offences and subject to criminal penalties. I have no doubt at all that those provisions were simply put in the Order because they were in previous orders. I doubt very much whether the necessity for imposing on accused persons a burden so contrary to natural justice was ever seriously considered on its merits when the order was drafted. I do not believe there is the slightest necessity for it or, at any rate, that there is sufficient necessity to justify going so much against what used, before regulations of this kind became so 1989 common, to be one of the principles of our English criminal law. Surely it is quite wrong to follow this practice of imposing these burdens and limitations upon persons accused of crime unless in a particular case an overwhelming justification on the facts can be made out. If the Parliamentary Secretary seeks to defend the provisions in Articles 8 and 9 I hope he will be prepared to tell the House the reasons which in his view and the view of his Department justify the reversal of the more normal and more natural principles of the criminal law.
Another somewhat objectionable provision, again of a type which is becoming only too familiar nowadays, is to be found in Article 13. There food imported on Government account is exempted from a great many of the provisions of the order. That seems to be a wholly unjustifiable privilege. Assuming that in the interests of the consumer any of the provisions of the order are necessary or desirable, they are surely just as necessary and desirable when the Government is the trader as when private firms or private individuals are the traders. It is surely quite wrong to exempt from provisions imposed upon ordinary traders trade carried on on Government account. When that trade is conducted by the very Department at the head of which is the Minister who is making these Regulations. a quite intolerable privilege is being conferred upon himself by the Minister of Food.
I hope the Parliamentary Secretary will not seek to justify this exception by saying it has been done before. If he likes, I will make him a present of saying that in my view much of what has been done before on this subject has been wrong. When, however, a new Order of this kind is made surely it is incumbent upon the Ministry not merely to follow previous practice, which may well have been a bad practice, but to look anew at the actual merits of the matter and only to confer exceptional privileges of this kind upon themselves if there is an overwhelming justification, not from the point of view of administrative convenience, but from the point of view of public interest for so doing.
I cannot see how Regulations which it must be assumed are intended to be for the benefit of the consumer when imposed upon private traders are not equally for the benefit of the consumer when the 1990 trader is the Ministry of Food. In view of recent events I do not suppose the Parliamentary Secretary will stand at that Box and say that every commodity imported and marketed by his Ministry is of the highest quality because he would find it a little difficult, for example, to satisfy the butchers of this country that that is so.
Those are some of the points which arise on this long, complex and obscure Order. Before sitting down I will make one general comment. The argument always used for regulations of this kind is administrative convenience. This House fully appreciates the difficult problems faced by the great Department of State which the Parliamentary Secretary represents, but it seems that in making these Regulations, as in making so many others, the Ministry have omitted to realise that they are, under powers delegated from this House, making the law of this land. And they bring the law of this land into contempt when they make it incomprehensible, when they make it deal in excessive detail with such matters as the definition of flavouring. It is sometimes forgotten by Ministers of Food and their advisers that when they make these regulations they are making part of the law of England and in this case, I would add, part of the law of Scotland with certain necessary adaptations—
§ Mr. Boyd-Carpenter
My hon. Friend below the Gangway refers to Wales. Being learned in the law, he will know that the law of Wales is substantially the same as that of England. Orders of this kind call for the sort of comment made by the Select Committee, the comment that their form and purport call for elucidation. It is in the hope that this evening both the form and the purport of this Order may receive elucidation that I beg to move.
§ 9.0 p.m.
§ Sir John Mellor (Sutton Coldfield)
I beg to second the Motion.
I am sorry that this Order purports to be a consolidation Order, because, of course, it is not really any honest consolidation whatsoever. That is most evident when one sees the way in which article 12 expressly provides that a whole host of 1991 Regulations, Orders in Council, by-laws and so on, shall be in full force and effect although they concern exactly the same subject, namely, the labelling of food. It may well prove that with this Order and all those other Regulations which are preserved in current effect there may be many conflicts of interpretation.
In paragraph 3 of the memorandum which the Ministry presented to the Select Committee on Statutory Instruments, it is stated:It was not the intention to apply by article 12 the provisions of any of the enactments specified in either Part I or Part II of the Schedule to the Defence (Sale of Food) Regulations, 1943.Then, in paragraph 5, it is stated:The enactments referred to in Part I of the Schedule are, in fact, applied with suitable modifications by articles 9, 10 and 11 of the Labelling of Food Order, 1950"—that is, this Order.
When I look at articles 9, 10 and 11, I find no reference whatsoever to the enactments referred to in Part I of the Schedule or, indeed, any other enactments—it does not mention them. If that is the sense of the memorandum, it means that the Ministry of Food think that enactments can be applied without any specific reference. If that is so, it is not surprising that the Select Committee wondered whether or not article 12 was intended to apply all the provisions of the enactments specified in either Part I or Part II of the Schedule to the Defence (Sale of Food) Regulations, 1943. No wonder that confusion was created when the Ministry of Food talked about articles 9, 10 and 11 applying certain enactments when those enactments are not even mentioned in any of those articles.
It has been the practice—a growing practice which. I think, ought to be universal—of most Ministries by now that when any Regulations or Orders purport to be consolidating in part but to be in part new, any new provisions incorporated should appear in thick type or should in some other manner be made quite conspicuous. There has been no attempt to do anything of that kind in this Order. It is quite impossible to discover what the new provisions are without an infinity of labour. The only assistance one derives at all is from the Explanatory Note, and that is only partial, because the Explanatory Note says: 1992This Order substantially re-enacts in a consolidated form the Labelling of Food Order, 1946, and its amending Orders … Certain new provisions have been introduced the principal ones being:—Then it gives a list of a dozen or so new provisions, but in the text of the Order what paragraphs or sentences give effect to those new provisions it is almost impossible to determine, because they are all printed in the same type.
The number of new provisions cover a very wide range indeed. I pick on one which is relatively simple, I think, to show how complicated are the rest as they are woven into the text of the Order. Under item (k), it is provided that fish may be designated as fish—fish to be designated as such when forming an ingredient of fish products …That is permitted; but when one looks at the text of the Order, the matter is not quite so simple as appears in the Explanatory Note, because one has to look first of all at the First Schedule, where one finds in the first column, under "Description of Food":Fish when forming an ingredient of fish products.Then, in column 2, which has reference to the provisions of article 2 from which this is to be exempt, and in column 3 is the extent of the exemption:Exempt to the extent that they may be designated as … fish … without further specification as to their common or usual name or as to composition.I say that is a simple and a striking measure of liberty imported into this Order, but the other provisions are not nearly so simple. What I have indicated is complicated enough, but, as my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) said in moving this Prayer, this Order is really a most fearful tangle and exceedingly difficult for anyone, even a person engaged in the trade, to understand.
I certainly think that it is quite wrong that by article 13 Government imports should be excluded from the operation of the Order. If it is right for the subject, it should also be right for the Crown to be bound by the terms of this Order. Article 13 says:Saving for Government imports, Forces' food. … This Order … shall not apply to any food imported on Government account which is still contained in the wrapper or container in which it was so imported.1993 I suppose that would apply to snoek, Russian crab meat and Algerian wines. It is not to applyto any food packed for consumption by His Majesty's Forces or the Forces of any of His Majesty's Allies or Co-belligerents.Why should they be treated like that? What is good enough for us here should be available for them. Thirdly, it is not to applyto any food intended at the time of sale for export from the United Kingdom, or for use as ships' stores.I really cannot see the sense of these exemptions, but perhaps the Parliamentary Secretary will explain in the course of his reply.
§ 9.8 p.m.
§ Mr. Norman Smith (Nottingham, South)
The House will have been very interested in the speech of the hon. Member for Sutton Coldfield (Sir J. Mellor), who displayed a most unexpected solicitude for the people in overseas countries who buy British exports, even if those exports happen to be meretricious. I thought it had always been the point of view of the Tory Party that we were entitled to exploit foreign customers, as well we might.
I am surprised that the hon. Baronet is so concerned with the welfare of those people, but I was rather more interested in the speech of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), who made me feel that this Order, so far from being an appropriate subject for annulment, really ought to be strengthened. Indeed, I should like to see the Ministry of Food act upon the Order if what the hon. Member said is true. He mentioned two commodities, both of which appeal to me immensely. One was invalid port and the other champagne cider. I think the hon. Member for Kingston-upon-Thames has something very useful there, and I hope the Parliamentary Secretary to the Ministry of Food or the Under-Secretary of State for the Home Department—I cannot say which, as both are on the Front Bench—will take note of what the hon. Member said.
I do not think the House will worry about the definition of flavouring foods. That is elementary organic chemistry which was perfectly understood by boys of 16 who went to the school to which I went, but when we come to champagne 1994 cider, I remember that when I was at school we used to expend our hard-earned pocket money on it—it was not hard earned, but we had difficulty in getting it out of our fathers. We used to spend our pocket money on a dubious fluid labelled "champagne cider." We were impressed much more by the name than by the fluid. I should like to think that by this Order the Government could proceed against any private enterprising person who with the motive of private profit, sells something that has the label "champagne cider" on it, although it is neither champagne nor cider. As a Wiltshire man I know it is not cider. When I was serving in the Army in 1918, I went into Champagne. We were up to the knees it it—it is a geographical place name.
The fluid to which I have been referring should be the subject of prosecution. It is not champagne and it is not cider. I should like to think that this Order will enable the Government to proceed against private enterprising people selling it.
§ Mr. John Foster (Northwich)
Does the hon. Member think that Harvey's of Bristol should be prosecuted for selling "Bristol Milk" when there is no milk in it?
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
This Order deals only with labelling.
§ Mr. Smith
I think that the label "champagne cider" is a kind which is not altogether fair to the consumer. This Order, far from being annulled, should be kept in force and used for bringing to book people who sell what is labelled 'champagne cider."
"Invalid port" has a wide application. Anyone whose health is below par is an invalid, but that does not mean that he will derive benefit from the wine which comes from the Douro Valley. It seems that the hon. Gentleman was right. The Government ought to do something about this, and I think that the case made by the two hon. Members is really one for strengthening this Order rather than for annulling it.
§ 9.12 p.m.
§ Mr. David Renton (Huntingdon)
I hope that the hon. Member for Nottingham, South (Mr. Norman Smith) will for- 1995 give me if I do not follow him in his somewhat irrelevant reminiscences, except perhaps to observe that the pocket money he received as a boy went very much further than the pocket money which we are now able to give our children.
Like many hon. Members, when I pick up a Statutory Instrument to read I take the line of least resistance and read first the explanatory note, if there is one. When I saw an explanatory note attached to this Order I felt some satisfaction at the thought that at last we were to have some consolidation of what had in recent years become a most confused part of the law. Only a few weeks ago I had to spend a whole day before a bench of lay magistrates arguing with another member of my profession—I was for the defence—as to the exact meaning of the orders which this Statutory Instrument is intended to replace. So when I turned to the Order, I looked for clarification because there was consolidation. I hoped that some of the points about which we had argued would not arise because of the consolidation which had taken place.
When I reached Article 12 of this Statutory Instrument I found that I was wrong. I was disillusioned because it happens that Article 12 is, as stated in the memorandum which the Ministry have supplied, merely a repetition of an Article which appeared in a number of previous orders on the same subject, and it is just that Article which had given rise to some confusion.
§ Mr. Renton
The hon. and learned Member, whose presence amongst us we are glad to have again, and who has not been slow to show that he is with us again, will forgive me, I am sure, for saying that in the sense in which he has interrupted, he is quite wrong. Because it so happens that when a Government Department gets hold of the most extraordinary mass of orders and amending orders which it has already put out and puts them into the form of a single order, the consolidation is not mere repetition as a consolidated Act of Parliament very often is. The consolidation is intended to be a gathering together of the meaning of various previous orders, and it is not necessary that every clause in the 1996 previous orders should be repeated unless it happens to be material.
I suggest that Article 12 of the Order under discussion is superfluous and confusing. If this is substantially to re-enact in a consolidated form the Labelling of Food Order, 1946, and its amending orders, then surely it is time we got rid of the vague wording of the article. For the benefit of those hon. Members who have not a copy of the Order before them may I repeat this Article 12? It says:Nothing in this Order shall relieve any person from complying with the provisions of any other Order or with the provisions of any Act of Parliament, Order in Council, regulation or byelaw for the time being in force,"…stopping there, that in itself is an entirely superfluous statement, because when we make any law, unless we express something to the contrary, we never exempt people from complying with all the other laws. So it is superfluous to that extent. Then it goes on, and this is where confusion is created:and in particular, where any provisions as to the labelling of food appear in any other Order of the Minister, it shall be necessary to comply with the provisions both of such other Order and of this Order.If this is intended substantially to re-enact in a consolidated form the Labelling of Food Order, 1946, and its amending orders, why do we need to give a suggestion that there are other provisions relating to the labelling of food in any other order made by the Minister?
On the face of it, it seems quite absurd, and that absurdity is not in any way explained or removed when we turn to the memorandum which the Ministry of Food have given. I refer to Appendix II of the Fourth Report of the Statutory Instruments Committee and to paragraph 7 of Appendix II. There we find the most surprising statement:The provisions of Article 12 have appeared in precisely the same form in the Labelling of Food Orders since 1944.That in itself is not a good reason for repeating them if they have already given rise to confusion; and I give evidence before the House tonight that they have given rise to confusion.… and the intention was not to apply the provisions of any other enactment. …If that is so, why do they say that the provisions of other enactments must be applied? 1997… but merely to make it clear that the provisions of other enactments, including Acts of Parliament … so far as they relate to labelling of food are unaffected and remain to be complied with"—"remain to be complied with," although they are not to be applied, it seems confusing—in addition to the requirements of the Labelling of Food Order, 1950.Surely this statement in the Memorandum by the Ministry of Food is in itself clear proof that article 12 is not required and in view of the fact that it has caused such confusion in the past I think it is high time the Ministry of Food dropped that article altogether.
There is one further point. At the same time, or approximately the same time, as the Order under discussion was made, another Order, called the Ministers of the Crown (Transfer of Functions) Order, Statutory Instrument 1044 of 1950, was made. We find that the functions which the Minister of Food is exercising by means of the Order under discussion are to be transferred in part to the President of the Board of Trade. I would have thought that, if the President of the Board of Trade were to have functions specially transferred to him, it would have been far better to allow him to make his own Order exercising his own functions, instead of his having to adopt the functions of the Ministry of Food Order which came into operation after he acquired the functions which are given to him by the Transfer of Functions Order. I suggest that would have been the simple way to do it, but if there is a good explanation from the Parliamentary Secretary as to why the whole of this Labelling of Food Order, 1950, should come into operation all at once, in spite of the Transfer of Functions Order, let him give it to us.
I feel that my hon. Friends have done a good service by raising this matter tonight, and I hope that the tradesmen of this country, who, after all, stand to be prosecuted if they do not comply exactly with these complicated provisions, will be spared some of the agony—and I hope their legal advisers as well—by the Government deciding to withdraw this Order and start afresh on a much more sensible basis.
§ 9.22 p.m.
§ Mr. John Foster (Northwich)
The hon. Member for Nottingham, South (Mr. Norman Smith) said that the object of my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) apparently was to allow breaches of the law to be committed with impunity. That is a travesty of what my hon. Friend was trying to do, which was to get the Government to bring in an Order which was as clear as possible and which would allow people who are prosecuted for these offences to know as easily as possible what the offences are. I agree with the hon. Member for Nottingham, South, that it is very desirable to have legislation on these principles. What we object to is the way in which the Order is drafted, because it is confusing and its articles are in many cases unnecessarily complicated. We think the Government should really make a better show of drafting this kind of legislation.
I want only to draw attention to one point in connection with Article 12. I will not repeat the strictures which my hon. Friend levelled at it, but I should like the Parliamentary Secretary to bear in mind that there is a provision in Article 1 (3) which appears to conflict with Article 12 and again raises unnecessary complications. Article 12 provides that this Order shall not exempt anybody from complying with the law of the land, and goes on to say that, if the Minister orders the labelling of any food under any other Order, the member of the public concerned, or whoever has to deal with this food, has to comply with it and with the other Order as well.
Then, if we look at article 1 (3), we find that, if there is a definition of a food under another Order of the Minister, that definition shall apply in this Order. So far, so good, but it goes on to say that, if there is a definition of a food under an Order of the Minister regulating prices and also another definition in his own Order which does not regulate prices, then the definition in the Order regulating prices shall apply. How can Article 12 say that one has to obey every other Order notwithstanding anything in this Order, and at the same time this Order says that one need not pay attention to the other Orders but can disregard the definition contained in an Order not regulating prices? It makes possible the raising of a legal technicality. I see what 1999 is being aimed at, but in my humble submission this could have been better drafted. The intention could have been achieved without this circle of Article 12 saying that one must obey every other Order which the Minister issues notwithstanding any other provision in this Order and then finding in another provision that it says one need not obey. That seems to me to raise a complication.
I should like the Parliamentary Secretary to deal with this point when he replies, because I think the wording is complicated. The point is fairly simple. Apparently there are two definitions in some Orders or, rather, one definition in one Order and one in another. This Order says that one can disregard the definition which is not in a price regulating Order, but that one must pay attention to a provision in a price regulating Order. That does not seem to be logical, and that is a reason why the Government ought to try again. We are not opposed to the principles of this Order.
§ Mr. Norman Smith
The hon and learned Member has three times repeated that he is not opposed to the principle of the Order. Do I understand that he would approve of a prosecution under this Order against the makers of Harvey's Bristol Cream for using a misleading label?
§ Mr. Foster
That has been tried, but they have got rid of a ridiculous prosecution. There are things which are defined in one way and which have a second meaning. Take, for instance, a cream bun. Nobody would expect to find cream in a cream bun, because it is a liquid. What is in it is a cream-coloured mixture and nobody would say that was a misleading label. We have to look at what is misleading in the light of the way people use words and not in the light of the goodwill and trade marks associated with particular foods and drinks. I suggest that in the case of "champagne cider" everybody knows what it is, and it would be very unfair—
§ Mr. Foster
Everybody understands what it is, and it would be very unfair 2000 after so many years to say to the makers, "You are using the wrong term and you should be prosecuted." The hon. Gentleman has had his joke, but I think the makers of "champagne cider" are excellent people and are in no way deceiving the public. Even in the Boer War people were not deceived by what they called it.
§ 9.28 p.m.
§ Mr. Derek Walker-Smith (Hertford)
I wish to intervene for only a few moments in this interesting discussion. I think the House will agree that tonight's proceedings add yet another sense of obligation which the House and the country as a whole should feel to the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and the hon. Member for Sutton Coldfield (Sir J. Mellor) for the vigilance with which they scrutinise these Statutory Instruments and for the skill with which they expose their weak and dangerous points.
This Debate has been characteristic of such Debates in that it has been the occasion for various constructively critical speeches from this side of the House and one speech only from the benches opposite, that of the hon. Member for Nottingham, South (Mr. Norman Smith). I do not know whether the hon. Member has read the Order—he certainly did not seem to have furnished himself with a copy of it—but I hasten to say that his speech was not the less interesting on that account. It seemed to me, listening attentively to what he had to say, that he gave the House to understand that in his younger years he was steeped in "champagne cider," in his middle years, he was steeped in champagne, and in his maturer years—a not unnatural consequence—he is steeped in invalid port. I had always thought there must be some explanation of the political opinions and rhetorical exercises of the hon. Member for Nottingham, South, and now we know.
I agree with my hon. and learned Friend—and in this we are at one with the hon. Member for Nottingham, South—that the principles which are designed to be embodied in this Order command the assent of my hon. Friends on this side of the House as well as that of hon. Members opposite. It is the slovenliness of the drafting of the Order which calls for rebuke from us on this side of the House, and from all those who value clarity in the expression of the law.
2001 Now, several of my hon. Friends have drawn attention to article 12 of the Order, and my hon. Friend the Member for Huntingdon (Mr. Renton) has defined the dual effect of that article. So far as the first effect is concerned, which he has criticised as being redundant, I do not think that that is necessarily a bad thing. It is quite true, as lawyers know, that even if one does not express it in a Statutory Instrument, the unfortunate citizen is not relieved from the obligation of obeying any other law on the subject, but it is possibly not a bad thing to remind the non-lawyer of that in a Statutory Instrument of this sort.
It is the second point of that article which I find obnoxious, where it says:… where any provisions as to the labelling of food appear in any other Order of the Minister, it shall be necessary to comply with the provisions both of such other Order and of this Order.I make bold to say that that is an expression which ought never to appear in any Statutory Instrument at all. It is perfectly possible for those persons to whom is entrusted the drafting of such an Order to bring into one Order all the provisions relating to this particular subject, and that is the proper and the tidy way of dealing with these Statutory Instruments.
Now, I am very fair minded, and shortly before the House rose for the Summer Recess I congratulated the Minister of Town and Country Planning on the fact that as he fumbles his way forward from change to change in the law relating to town and country planning, he does, at least, revoke any previous Statutory Instruments and re-enact a composite Statutory Instrument. Well, surely the Parliamentary Secretary is not going to go to the Despatch Box and confess that the Ministry of Food are content to lag behind the Ministry of Town and Country Planning? Surely where they lead he can at least follow? Surely there would be no difficulty in his Ministry producing an Order which embodied the whole of the Orders relating to this subject in one Statutory Instrument? It is difficult enough, with an Order framed as this Order is framed, for those whose task it is to interpret the law to understand it, but for those unfortunate people who are not versed in law, and whose task is simply to comply with the Order, it is a good deal more difficult.
2002 Let me end on this point, which is an echo of the point made so ably by my hon. Friend the Member for Kingston-upon-Thames. Surely the task of any Minister, in framing these Statutory Instruments, is to make it as easy as possible for the citizen to realise what the law is. Surely what they ought to bear in mind is this, that they have in their Departments persons whose sole concern and preoccupation is the drafting and interpretation of these Orders, but that the people who have to comply with them, and who are bound to obey them, are under the painful necessity of doing an ordinary day's work in the furtherance of the industry and commerce of this country, in order that those various Ministries may exist at all. That is the right attitude of mind for a Minister to adopt when he is adding to the law of England by the formulation of these Statutory Instruments. I hope that when the Parliamentary Secretary replies he will confess that article 12 is one which should not have appeared in this Statutory Instrument, and that he will give an unqualified undertaking that nothing so slovenly will ever appear again.
§ 9.35 p.m.
§ The Parliamentary Secretary to the Ministry of Food (Mr. Frederick Willey)
We have heard some rather extravagant criticism of the drafting of this Order, but I shudder to think what the state of confusion would have been if I had been unfortunate enough to take the advice of those who have contributed to the Debate so far. The position with regard to the Order is very simple. To the hon. Member for Huntingdon (Mr. Renton), who professes that article 12 has been the subject of confusion, I say that that simply is not the case. The previous article had an exactly similar provision; it also went before the Select Committee—as you, Mr. Deputy-Speaker, will remember—and the Committee did not then feel it right or proper to call the attention of the House to that previous Order.
§ Mr. Renton
As the hon. Gentleman is challenging what is, in effect, the evidence I have given to the House, perhaps he will permit me to repeat that I had to spend the whole of one day—and the controversy was not entirely of my making, for the prosecution also had some doubts—discussing the effect of article 12 2003 on the existing orders. After all, this particular Order does not come into operation until 31st October, and it was not until I had had that experience that, as a Member of the Statutory Instruments Select Committee, I felt it my duty to draw the attention of the Committee to the confusion which had already arisen, and which was apparently being repeated in this Order. It may well be that no previous Member of the Committee had had the same experience that I had had, and that may well be a reason why the previous Orders got through.
§ Mr. Willey
That only confirms what I have just said, that there is no indication that if there be confusion about the present article 12 or the previous article that confusion is of other than recent origin. This matter however has been drawn to the attention of the House by the Select Committee, and I wish to deal shortly with the points that have been raised.
First let me deal with article 12. The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) cannot have it both ways. He cannot begin by complaining of an Order being 19 pages long and then say that it is not a broad enough consolidating measure, and that it ought to contain all the provisions relating to the labelling of food. If that happened it would be much longer than 19 pages.
§ Mr. Boyd-Carpenter
The hon. Gentleman surely appreciates that the objection springs from the combination of excessive length and inadequate scope.
§ Mr. Willey
I am dealing with only one point at the moment. I will come to the other point. The first thing I want to say about article 12—and I do not think this has been seriously disputed—is that it is purely declaratory; it has already been pointed out that it is superfluous, and it only appears in the Order in an endeavour to be helpful to the food manufacturers and others who rely upon it. I can really add very little more to the memorandum of the Ministry upon that point.
In paragraph 7 of their memorandum they call attention to other provisions which affect labelling. It was felt that from a drafting point of view it would make the Order confusing if all these provisions, which only apply, by and 2004 large, to particular commodities, were set out in an Order of this nature. The Ministry thought it right and proper by an Order such as this to give notice to the traders that with regard to margarine, cheese and that sort of thing entirely different provisions still apply.
Apart from those cited here, there are many other provisions, such as those about the provision of merchandise marks. Do hon. Gentlemen opposite suggest that all the provisions about merchandise marks should be set out in this Order? Again, on the question of preservatives and prices, what the Order does is no more than to say that these are the consolidated provisions but there are provisions affecting labelling, and it would be wise to bear them in mind.
§ Colonel Crosthwaite-Eyre (New Forest)
If the hon. Gentleman will look at article 1 (3), he will see that the price regulation, if there is a conflict between two Orders, is the one that governs a particular case. Now he says that under article 12 all other Orders have equal validity. Does article 1 (3) mean that the price regulation is the key test or does article 12 constitute the key test?
§ Mr. Willey
The hon. and gallant Gentleman has done no more than repeat the point made by the hon. and learned Member for Northwich (Mr. J. Foster), and I did not think that that was a point worth replying to. I am sure that the hon. and gallant Gentleman has not fully read the Order. He is confusing compliance with other provisions and description or definition for the purposes of the Order.
I was asked whether there was any difficulty or danger in continuing the appeal that "Guinness is good for you." Of course there is not. I am afraid that the same does not apply to invalid port, and this is no more than a protection to the consumer. There is no difference in substance between invalid port and other port. If there is a difference, it is one which I will not comment upon. Why should the consumer be misled in this way? Medical advice—I hope that I have the hon. Member for Luton (Dr. Hill) with me—has always been that such misleading descriptions should be prohibited. The same is true, as has been already mentioned, about champagne cider. I might add this with regard to 2005 Champagne cider, that we had no representations at all from the cider industry about this provision.
There is only one other point which it is necessary for me to deal with. It is a point of substance. That is why the provisions of this Order should not apply to Ministry purchases. The reason for that is quite shortly this: That Ministry of food purchases have generally been made of supplies when they have been in short supply in the world. For that reason, it has been right and proper to say that we should obtain this or that commodity which has been in short supply, although the goods themselves may be incompletely labelled. As goods get into better supply and trades turn to private industry, the protection of the consumer regarding the description of the goods in the tins labelled becomes of greater importance, and therefore we will see that the provisions of this Order are applied.
§ 9.45 p.m.
§ Colonel Crosthwaite-Eyre (New Forest)
This Debate has concerned the interpretation of articles 12 and 13 of the Order. Perhaps I might start with article 13. As I understand it, the Parliamentary Secretary said that the Ministry of Food could not be bound by any terms in this Order because they are buying things which are in short supply. In other words, if things are in short supply they cannot be bound by the definitions which apply to those articles which are in more generous supply. That seems a most extraordinary argument, especially when we come to think of what has happened in the case of such commodities as snoek. Is the Parliamentary Secretary going to say that snoek was is short supply when it was bought? Again, what about the many tins of canned meat which had a surplus label on them when they were put in the shops? I have no doubt that the Algerian wine could have been labelled "British type Burgundy."
We have not been given a single instance where it has been necessary for the Ministry to buy an article in short supply which could not have been fairly labelled under the terms of the Order. This is simply one of those things which has been put in to safeguard the Department against any possible repercussions, while at the same time requiring private traders to meet these requirements. We have had a certain amount of talk about meat products, and we have seen what has 2006 happened at the latest conference of the Meat Traders' Association. The canned meat covered by this Order has been completely repudiated as an article that could be sold under fair conditions to customers who want good quality meat.
It means that supplies which do not conform to any known prescription must be safeguarded just because they have been bought under bulk purchase, whereas if the supplies have been bought in any other way they cannot be allowed to be sold. This Order is designed to ensure that bulk purchases of whatever quality and specification can be dumped on the consumer without there being any terms and conditions which we are all agreed are necessary for the protection of the consumer.
In regard to article 12, the Parliamentary Secretary was good enough to say that I had reiterated a point which had already been made by my hon. and learned Friend the Member for Northwich (Mr. J. Foster). But, surely the point is one of the utmost importance. We have here two separate tests. In the one case there is the criterion that whatever else may happen we have to take price regulation as being the ultimate arbiter, whereas in another case we are saying that that is not to be so and we have to take into account certain conditions, which is the right test. After all, in another week's time these conditions will be binding on all persons selling foodstuffs within the ranges mentioned in the Order. It is not good enough to say merely that this is a point which has been made before. It is necessary to produce a definite reply for the satisfaction of Members on both sides of the House as to which test is the standard to be applied. I do not think it is fair to say that here is a point which is a difficult one, and which has already been made without producing any answer.
In conclusion, my chief objection is to article 13, which allows the Government in bulk purchasing to override every single considered test and standard of fitness that is made for private enterprise; and, secondly, in article 12, to introduce such a complex state of affairs that a private trader is going to be very lucky if, in his own small way, he can say which is the best way to serve the consumers. Before we leave this Order.
2007 I hope we shall get a clearer and better statement from the Government.
§ 9.51 p.m.
§ Dr. Hill (Luton)
I should like to comment on one observation in the Parliamentary Secretary's reply—the observation which related to such claims as are made for alcoholic fluids, whether they be coloured dark or light. Article 7 of this Order prohibits the claiming of tonic properties for any food by reason only that the food consists of alcohol. Proceeding on the assumption that the liquid in question contains the alcohol, too, there is nothing in this Order which precludes the most fantastic claims which an advertising imaginative genius can make for fluids containing alcohol on the assumption that those fluids do not purport to be foods.
While I support entirely the general purpose of this provision, and although I know that to speak in any critical terms of the food, stimulant and the tonic qualities of alcohol, is somewhat unpopular, I want to make the point that a great deal of the publicity and advertising which is intended to suggest the nutritional quality of alcoholic beverages is based not on psychology but on a fantastic conception of what such food can do to sustain the human frame. The purpose of this Order, in prohibiting such false claims for foods only on the ground that they contain alcohol, might well be extended to such liquids as are alleged to contain alcohol, if only to prevent false claims being made for their food quality.
I do not wish to be misunderstood. The fact that alcoholic drinks do not contain building or other nutritional elements need not necessarily condemn them. I am not depressing the effect which such properties have on the higher centres of energy and on our worries and sense of fatigue. What I am saying is that if the purpose be to prevent the making of false claims, it would be a very desirable thing to address attention to the falseness of the claims that are made for the food value and the building value of such liquids as have on other grounds much to commend them to many in this House. I am bound to say that I deplore the absence of the hon. Member for Ealing, North (Mr. J. Hudson) on this occasion. I think it is a pity. [An HON. MEMBER: 2008 "Perhaps he is at the bar."] I will not pretend to suggest that I know where he is or what he is doing.
There is a great deal of nonsense talked about the food value of alcohol and a great deal of misleading propaganda to suggest that it has a food value which it has not. I would much rather see the excellent fluids to which I am referring properly described and given the credit for all the good they do without the pretence that they sustain the human frame, that they are of particular value to the expectant and nursing mothers and that they have any nutritional value worth considering.
§ 9.56 p.m.
§ Mr. Boyd-Carpenter
I am bound to say that I did not find the Parliamentary Secretary's reply though couched in his usual style of reasonable fairness very satisfactory. He did not attempt to deal with a number of the points that were made by hon. Members as to the drafting of the Order. No doubt, good tactician that he is, he did not attempt to defend the indefensible. I hope, nevertheless, that he and those who advise him have heard the comments made by hon. Members on these points and that they will, if only to avoid a similar experience in the future, draft these Orders a little more clearly and effectively.
The Parliamentary Secretary's reference to the points raised before the Select Committee seemed to me to verge upon disrespect for that Committee. He told the House that his answer was contained in the memorandum submitted by him, but he did not point out that it was after that memorandum had been submitted and considered that the Select Committee decided to report this Order to this House. He must appreciate that, in view of that highly expert body which is entrusted by this House with specific functions, the memorandum to which he referred with apparent satisfaction, was not satisfactory.
§ Mr. Willey
I am much obliged to the hon. Gentleman. I want to assure the House that I did not intend in any way to be disrespectful to the Select Committee, of which I was once a member. I had in mind that when a memorandum is submitted to the Select Committee it is not published unless the report of the Committee is published to the House. 2009 I am not quarrelling at all about this matter being raised here by Prayer, but what I thought was essential—that is why I referred to the memorandum—is that if there is confusion the confusion should be dispelled. I think that has been done.
§ Mr. Boyd-Carpenter
The Parliamentary Secretary sought to satisfy this House by reference to the memorandum. The Select Committee, entrusted by this House with specific functions and supported by most skilled advisers, was not satisfied. If the hon. Gentleman does not find it possible to give a better explanation that is some reason why this House should be equally dissatisfied. He brushed aside the issue of the prohibition of the use of the title "champagne cider"—which so pleased his hon. Friend from Nottingham—which is a very good export line. It is not seriously suggested that anybody has been misled into thinking the drink is champagne. It is a perfectly well established line, and to eliminate this perfectly harmless trade practice must have repercussions upon our export trade.
I think the hon. Gentleman's defence of article 13 and of the exemption of Government trading from the greater part of this Order was much the weakest part of his speech. He based his argument upon "short supply," a phrase which his Department invariably prefers to the clearer expression "scarce." What he did not seem to appreciate is this. Private importers sometimes, when he lets them, import commodities which are scarce. If the argument for contracting out of the Order is good when his Department imports scarce commodities it is surely equally good when private traders do so. If the Order related to anybody—his Department or a private trader—importing anything from a scheduled list, varied from time to time, of scarce commodities, there would be a case for it, but to confer this privilege on his Department when it imports anything, scarce or plentiful, and to deny this to private traders, carries a taint of privilege with it which seems highly unsatisfactory.
§ Mr. Willey
The hon. Gentleman may be overlooking the fact that these provisions are also to protect the good decent private importer. When a commodity is decontrolled it is to protect the importer of good commodities against the shoddy commodity that a provision like this is necessary.
§ Mr. Boyd-Carpenter
That argument would have considerable force if the importation of shoddy commodities were a monopoly of the private trader, but the Parliamentary Secretary must realise that the consumer, who is much more important in this connection than traders, public or private, is just as likely to require protection from the products imported by his Ministry as from those by a private trader. After all, a private trader who markets shoddy goods is always subject to the sanction that if he persists he will in the end go bust, but when his right hon. Friend, with his monopoly powers, imports shoddy goods the same sanction does not apply because he is a monopolist and, anyhow, has the taxpayer at his back. The Parliamentary Secretary did not seem to grasp that if these provisions are wise and necessary for the protection of the consumer they are at least as necessary when the trader is the Ministry of Food as they are when he is a private trader. To repeat what I was saying when the Parliamentary Secretary intervened, there is a very unpleasant reek of administrative privilege about this.
As has been said, the Order, for all its prolix complexity, contains a good deal of necessary law, some of it re-enacted, and the House is faced with the difficulty that if it were to annul the Order it would sweep away with a certain amount of rubbish some very necessary provisions. Therefore, I would not recommend my hon. Friends to vote tonight to annul the Order. I recall that on the last occasion when that advice was given by an hon. Member from this side of the House the enthusiasm which he had aroused among hon. Members opposite was such that, notwithstanding his moderation, they somewhat embarrassed the Government by carrying the Prayer against the Government. I cannot give the Parliamentary Secretary any undertaking that that will not occur tonight, although I understand that certain steps taken by the Patronage Secretary recently have somewhat diminished any such risk. While I cannot withdraw the Prayer, since to do so would be to admit satisfaction with what was a thoroughly unsatisfactory reply, I equally could not press the matter to a Division, and, so far as I am concerned. I shall be quite willing to have the Motion negatived.
§ Question put, and negatived.