Clause 28.—(POWERS OF SAMPLING.) (Hansard, 8 February 1956)

§ Mr. Hannan
I beg to move, in page 21, line 36, after "food," to insert "or drug."
I raised this point in Committee on the Motion that the Clause stand part, and on that occasion the Lord Advocate replied: It is very complicated and, in view of the arguments deployed by the hon. Member, we should like further to consider whether it is necessary or desirable that the words 'or drug' should be included in subsection (3). We will consider that point."—[OFFICIAL REPORT, Scottish Standing Committee: 15th November, 1955, c. 426.] I hope that the Lord Advocate has been able to consider this and that he has some pleasant information to give us, just as had the Solicitor-General for Scotland a little earlier. The Joint Under-Secretary of State has also made a concession today, but the Lord Advocate is still a little stubborn.
The basis of the Amendment is this. Clause 1 (1) deals only with the adulteration of food by the addition or subtraction of anything, and subsection (2) of that Clause deals only with drugs. While the Title of the Bill refers to both food and drugs, the Lord Advocate in Committee did not appreciate—it was probably my fault—that I was trying to deal with those two topics separately and was directing attention to the sale of drugs in chemists shops. Subsection (2) of Clause 28 states that A sampling officer may purchase samples of any food or drug, or of any substance capable of being used in the preparation of food … 1702 but subsection (3) of the Clause provides … that a sampling officer may take a sample of any food… The words "or drug" are omitted. I am informed that drugs sold in a chemist's shop not for food can be adulterated, and I want to be assured—I hope by the acceptance of this Amendment— that that will be covered. There is no need to develop this point any further— I think that the House is fully apprised of it—and I hope that the Lord Advocate can accept the Amendment.

§ Mr. Thomson
I beg to second the Amendment.
The Lord Advocate said in Committee that this is a complicated matter, but the more I look at it the harder I find it to understand his reasons for not accepting my hon. Friend's Amendment during the Committee stage. It is quite clear that subsections (2) and (3) deal with separate processes. Subsection (2) very plainly deals with any food or drug, but subsection (3), which deals with sampling, for some reason refers only to food.
During the Committee stage the Lord Advocate did not argue that subsection (3) deals only with food as distinct from food and drugs, but—most curiously, it seemed to my lay mind—that food was adequately defined in the definition Clause to incorporate such substances as drugs. If that is still his argument, I submit that it is not a very strong one. In a Bill like this, which will be used by people who are not lawyers, it is very important that in as many of the Clauses as possible such things are fully explained in the Clauses themselves and do not have to be explained by reference to a definition Clause. In those circumstances, I would have thought that there was a very strong case indeed for making quite sure that subsection (3) made it quite plain that the sampling officer was empowered to take samples of both food and drugs.

§ The Lord Advocate
The hon. Member for Dundee, East (Mr. G. M. Thomson) was quite right in saying that during the Committee stage I did refer to the definition Clause. I think that that was an inadequate answer—almost an irrelevant answer—but as the hon. Member for Maryhill (Mr. Hannan) pointed out, the matter had been raised rather suddenly and we promised to look into it.
1703 I fear that I am once again apparently the sole bearer of ill news. We feel that we cannot accept the Amendment because we do not think it necessary to include drugs. Certain contrasts between subsections (2) and (3) have been pointed out, but the important distinction between them is that in (2) the word is "purchase" while in (3) the operative word is "take." We think that it is sufficient if power to take—as distinct from purchase—is limited to food and that it is not necessary to give power to take drugs. Clause 28 (2) gives power to purchase drugs.
The need for taking samples of food really arises only where a local authority officer visits premises where goods are not on sale—for example, factories, warehouses and the like. If the officer went to a warehouse and found a barrel or a bin of flour it would be unreasonable for him to have to purchase a sample— and, in fact, it might be difficult to purchase a small quantity from a barrel or bin of flour. The position in regard to drugs is slightly different and there are other provisions in other Acts which enable a control of drugs to be taken.
That is the most satisfactory and the shortest answer—that here we do not think it necessary to demand further powers in respect of drugs and, of course, there is still power under subsection (2) to purchase them.

§ Mr. Thomson
Will the right hon. and learned Gentleman say why he feels that sampling officers may not need to deal with drugs in warehouses?

§ The Lord Advocate
With permission, Mr. Deputy-Speaker, in dealing with drugs, hon. Members will recollect that there are Dangerous Drugs Acts, Therapeutic Substances Acts, Pharmacy and Poisons Acts which we think have, up to date, proved sufficient to control the composition of drugs. Of course, those Acts do not apply to food.

§ Mr. Steele
I should like to protest against the Lord Advocate's attitude. To start with, he indicated that he had rejected the Amendment in Committee because he did not understand it. The Joint Under-Secretary of State is showing his disagreement, but the right hon. and learned Gentleman himself said that he had used a bad argument.

§ The Lord Advocate
An irrelevant argument.

§ Mr. Steele
An irrelevant argument— so I only take the evidence from the Lord Advocate himself. He then gave the Committee the impression that he had approached the subject again, not to discover whether or not it was a good Amendment, but to find a better argument to use against it.
5.0 p.m.
It is evident that the speeches of the Lord Advocate have been unfortunate, and it is quite understandable to us that he has been the bearer of bad news, but I am sure that his argument today, while perhaps not irrelevant, is just as unsatisfactory as it was in Committee. We ought to give him another opportunity to find a better argument than he has used this afternoon. Perhaps if he studies the matter again he will find reasons for accepting the Amendment.
With regard to subsection (2), I can understand the circumstances in which a sampling officer, going into a shop, would be able to purchase a sample. It is important that he should be able to do so, so that the person in charge of the shop would be unaware that he was a sampling officer. But the Lord Advocate says that a sampling officer would not take away or purchase a barrel containing some commodity because he would only want a little of it. As my hon. Friend the Member for Dundee, East (Mr. G. M. Thomson) indicated, there are surely places where there will be bulk supplies of drugs or preservatives. The Lord Advocate says that there is no point in adding these words "or drug," but is there any reason why they should not be added? We believe that the inclusion of these words would be an added protection to cover any case that might arise.

§ Mr. Ross
The argument of the Lord Advocate on this occasion has been as unconvincing as it was verbose. He may have been studying the Amendment, but I have my doubts. I think that he spent more time studying what he should say in rejecting the Amendment.
Having read the previous subsection as well as this subsection, I cannot see why this greater power should not be added by the inclusion of the words "or drug." The Lord Advocate said that he was a 1705 carrier of bad news. Within the context of this Bill, a carrier is a very dangerous thing indeed. What we do with carriers is to take them away and submit them to treatment, and I suggest that the Government should do that with the Lord Advocate.

§ Miss Herbison
I hope that the Government will have another look at this Amendment. The Lord Advocate said that it is not necessary, but my hon. Friend the Member for Maryhill (Mr. Hannan) wished to know why the words "or drug" are included in subsection (2) and not in subsection (3). The Lord Advocate said that subsection (2) applied to a sampling officer who would be making a purchase, and that he saw no reason for allowing a sampling officer to take a drug under subsection (3). But, according to subsection (3), the food or drug are not all to be found in a shop. There are many places where it might be found. It refers to: …any substance capable of being used in the preparation of food, which appears to him to be intended for sale or to have been sold for human consumption, or is found by him on or in any premises, stall, vehicle, ship or aircraft or place other than premises which he is authorised to enter… Surely, if the inclusion of the word "drug" is correct in subsection (2), it is just as proper to have it in subsection (3). I am certain that if the Lord Advocate has another look at this matter he will come to the conclusion that there is reason in this Amendment. If he cannot give better reasons for refusing it, he should accept it.

§ Mr. Willis
May I ask the Lord Advocate to try to forget that he is a member of the Bar trying to win a case? The reason why he is always the bearer of bad tidings is that he approaches these problems as though he were in Parliament House, Edinburgh, trying to win a case, instead of trying to assist us.
I was impressed by the offhand manner in which the right hon. and learned Gentleman dealt with this matter. He said that there is power under subsection (2) to purchase a drug and that he does not see why the same power need be taken under subsection (3) in the case of taking a drug. But why not? He referred to several other Acts relating to drugs, but he did not tell us what those Acts state. If he had told us that it was 1706 possible for drugs to be taken under these Acts, in the same way as it is possible to take a sample of food under subsection (3) of this Clause, we might have been satisfied.
The right hon. and learned Gentleman has a staff to make these inquiries for him, and if he is using this argument for not including reference to drugs in this subsection, he might at least have given us the proper argument and not merely the references to whatever argument he is using. He ought to tell us his reasons. It is not good enough to say that they are in some Act. He should tell us what the Act empowers him to do. Is it possible under the Acts that he has mentioned to do in respect of drugs what can be done under subsection (3) of this Clause in respect of food, namely, to take a sample? If it is not possible, this Amendment ought to be accepted.

§ Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)
The Question is—

§ Mr. Thomas Hubbard (Kirkcaldy, Burghs)
May we have an answer from the Lord Advocate?

§ Mr. Deputy-Speaker
That does not lie in my hands.
The Lord Advocate: I must apologise for not rising to my feet quickly enough. It has been suggested that I came here with a view to winning a case and in the hope that this and other Amendments would be rejected. That is most certainly not the attitude which we on this bench adopt to any Amendment, from whatever part of the House it may come. It is much more satisfactory to us to be able to accept an Amendment. We most certainly would have accepted the Amendment had we thought it desirable or necessary. The hon. Member for Edinburgh, East (Mr. Willis) said that we came here with the intention of winning a case. We do not come here to win a case. We come here in order to state the situation as we see it for the decision of the House.
I do not want to repeat what I said earlier, but there is a very marked distinction between subsections (2) and (3), one relating to purchasing and the other relating to taking. We do not want more taking to be done than is necessary, in contrast to purchasing. That surely is 1707 only fair. One should purchase if possible, but in certain circumstances it is necessary to take.
While I cannot give an absolute assurance to the hon. Member for Edinburgh, East that everything which could have been done under subsection (3) if the Amendment were accepted can be done under existing legislation, I can at least say that under existing legislation we are able to do everything that we think is necessary; otherwise we would have accepted the Amendment and introduced the words "or drug" in subsection (3).

§ Mr. Hoy
That is an appalling answer. The Lord Advocate told us that my hon. Friend the Member for Edinburgh, East (Mr. Willis) had suggested that his attitude was that of hoping to win a case. On the evidence which he has presented this afternoon the Lord Advocate had a very poor chance of winning it. We have had two winners this afternoon and the Lord Advocate is in the appalling position of being unable even to fill the third place in this race.
In view of the long delay between the Committee stage and Report, I should have thought that the Lord Advocate would have gone into the matter very fully. My hon. Friend the Member for Edinburgh, East asked whether this position was covered by existing legislation. Surely the House was entitled to a much better answer than that given by the Lord Advocate.
It is no good the right hon. and learned Gentleman saying that he has put in the Bill all that he feels to be necessary. It is the duty of the House to see that the Bill is as efficient as possible, and, particularly on this Bill, the Opposition have made a contribution in making it a very much better Bill than when it was presented. That reason given by the Lord Advocate is a very poor one.
We are very disappointed. It was not our intention to press the Amendment to a Division—that would be for my hon. Friend the Member for Glasgow, Mary-hill (Mr. Hannan) to decide—but the Lord Advocate places us in a most unfortunate position and we have to decide what we should do about it.

§ Mr. Hannan
May I, with the leave of the House, address a few questions to the 1708 Lord Advocate? I hope that in view of the representations which have been made he will tell us that he will at least look at this matter still further. The Bill deals not merely with food, but with food and drugs, and that distinction runs through the first three or four Clauses.

§ Mr. Willis
It is in the Title of the Bill.

§ Mr. Hannan
The first two subsections of Clause 1 deal with those items separately. They are again separate in Clause 2, and Clause 3 lays down what the defences will be in either case. If there is an offence against the Act and the evidence of the sampling officer is important when the case comes to court, is it not most important that that officer should be empowered to "take" as well as to "purchase "? The Lord Advocate makes a distinction between "purchase" in subsection (2) and "take" in subsection (3). Surely that is not the important distinction. The important point is that we should be able to "purchase "or "take" either food or drugs. To me, as a lay man, that is the simple point.
I agree that in subsection (2) there is the qualification concerning the Dangerous Drugs Act, 1951, and it seems to me that if the same qualification is inserted in subsection (3) the point would be covered.
The Lord Advocate finished his argument by saying, in effect, that this was the best argument to advance. That suggests that he has had before him three or four possible arguments of which he has chosen one. I think, by the smile on his face, that I am not far wrong. In keeping with the spirit which has been prevalent throughout our proceedings in Committee and in the House, I hope the Lord Advocate will now say either that he accepts the Amendment or that, at least, he will give further consideration to it.

§ The Lord Advocate
I beg to move, in page 22, line 7, after "ship," to insert: 'not being a home-going ship. This Amendment was referred to earlier when we were dealing with the Amendment to Clause 13, page 11, line 5. Perhaps it is the wish of the House that I should now formally move it.

§ The Lord Advocate
I beg to move, in page 22, line 8, to leave out from "imported" to the end of line 9 and to insert: or otherwise carried as part of the cargo of that ship or aircraft for unloading at a place in Scotland. The purpose of the Amendment is to enlarge the circumstances in which sampling can take place. Certain criticism was made by right hon. and hon. Gentlemen opposite about the somewhat limited circumstances in which cargoes could be sampled. The Amendment will allow transshipment cargoes to be sampled.
Hon. Members might be prepared to consider at the same time, with your permission, Mr. Deputy-Speaker, the Amendment to Clause 37, page 28, line 21, leave out "as part of the cargo" and insert: or otherwise carried as part of the cargo for unloading at a place in Scotland. I might be able to move that Amendment formally when we reach it.