Clause 58 (Hansard, 24 June 1968)

§ Mr. K. Robinson
I beg to move Amendment No. 68, in page 49, line 45, at end insert: (c) the disposal of medicinal products which have become unusable or otherwise unwanted. In response to a question raised by my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden), in Committee, I undertook to consider whether the phrase, "safe keeping", mentioned in subsection (l)(b) of the Clause, included the disposal of medicines which were no longer required, particularly at what one might call the retail level, shops, pharmacies, hospitals and clinics. I think that what my hon. Friend had in mind was surplus or abandoned stock.
On reflection, I think that it would be desirable to make a provision to deal with this kind of thing. The wording we have tabled would enable a regulation to be made requiring the disposal under safe conditions of medicinal products no longer required by their owners, but it would not enable the enforcing authority to declare medicinal products unusable or unwanted or to sequester them and dispose of them. The provision is wide enough to enable requirements to be prescribed in relation to any premises where medicinal products are kept, including manufacturers' and wholesalers' premises, but I imagine that it is less likely to be used in relation to the latter two groups of premises.

§ Mr. Ogden
I thank my right hon. Friend for the consideration he has given 69 to this matter and for accepting the point of view put to him in Committee. I said in Committee that my right hon. Friend seemed to be more prone to accepting Amendments tabled by the Opposition than he was to accepting Amendments tabled by his hon. Friends, doubtless because he could rely rather more on our support than he could on the support of Opposition Members. Once again, I thank my right hon. Friend.

§ Mr. Scott-Hopkins
When the Amendment is made, will subsection (2)(a) apply to these regulations? I take it that it must. If we are talking about the disposal of medicinal products, as we shall be, it is vital that the way they are disposed of down drains should be safeguarded. The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food will know that in Kent we had the case of the disposal of refuse of a very poisonous substance which did great damage.

§ Mrs. Knight
I seek a little clarification as to what "disposal" in this context means. In some contexts "disposal" can mean "sale". Because of the generally loose wording, this is not as clear as it could be.

§ Mr. K. Robinson
We have used"disposal" because it is the widest possible word. The hon. Lady can rest assured that regulations prescribing the manner of disposal will not include the sale of unusable products. The answer to the hon. Member for Derbyshire, West (Mr. Scott-Hopkins) is that the whole purpose of making regulations is to ensure that the manner of disposal takes account of the public safety.

§ Mr. Michael English (Nottingham, West)
I beg to move Amendment No. 69, in page 50, line 14, after "under" insert "subsection (1) of".

§ Mr. Deputy Speaker
With this Amendment the House can discuss Amendment No. 70, in line 18, at beginning insert "any part of the".

§ Mr. English
The object of this somewhat technical Amendment, and of Amendment No. 70, which is an alternative to it, is to limit the power of the Ministers to make regulations under this Clause. The problem was discussed at 70 some length in Committee. Opposition Members moved an Amendment to delete "lay-out" from subsection (2). I attempted to amend the Clause.
The problem is caused by the wording of subsection (2), which seems to imply not merely that the Ministers may make regulations on the lines of the matters mentioned in subsection (1), but also, for example, with regard to the whole layout of premises in some part of which pharmaceutical or medicinal products may be sold. This power seems rather excessive.
The problem is exacerbated by statements being made by or on behalf of the Pharmaceutical Society at the moment. I want to give my right hon. Friend an opportunity to deny these statements. Since 23rd June, 1966 to 29th May of this year there has been under appeal a case between the Pharmaceutical Society and one of its members who was also a director of the pharmaceutical firm of Boots. The judge of first instance decided that the society was attempting to regulate its members in such a way as to be in restraint of trade; he held that it was an unreasonable restraint of trade.
The view taken by the judge of first instance was upheld by the Court of Appeal. During the course of the Committee stage of the Bill—on 29th May— the Court of Appeal decision was unanimously upheld by all five members sitting on the Appellate Committee of the House of Lords.
The first comments of the Society on this subject are highly interesting and, by implication, make a serious charge against the Ministry. The first comments were these: In a sense, the Dickson case has been overtaken by events in the shape of the Medicines Bill. And the question that must come to mind is whether the Medicines Bill would have had the shape it has but for the case. The implication by whoever wrote this anonymous article in the Pharmaceutical Journal of 1st June, 1968 seems to be that the Ministry drafted the Bill with the precise object of giving itself power to reverse what it felt might be the decision of the Appellate Committee of the House of Lords and the previous decisions of lower courts taken before the Bill was introduced. I personally 71 do not believe that this charge is true, but I give my right hon. Friend the opportunity to deny it specifically. I do not think that the charge is true for the simple reason that I think that this subsection is largely drafted almost as a copy of Section 13(2) of the Food and Drugs Act, 1955. For that reason, I do not share the view expressed by the Pharmaceutical Society.
The society, in a further article in the Pharmaceutical Journal of 8th June, said: Although the motion"— that is, the motion in the Dickson case— was thrown out and is now a dead letter, the problems with which it sought to deal remain. Although their Lordships refused to consider them in detail, they are apparent enough to most pharmacists … More important, they are also apparent to the Government … My right hon. Friend ought, in the context of these Amendments, one or other of which I hope that he will accept, to make it clear that his objects are those of safety and not those of the society, the instinct of the society being to restrain trade in favour of its individual chemist membership. In another place a specific proviso should be inserted by my right hon. Friend so that the Clause cannot be used to further this internecine argument in the retail section of the pharmaceutical industry. The alternative would be for my right hon. Friend to give a specific assurance here as to the purposes for which he intends to make use of this power.
Statements of this character have been made. From conversation, I imagine that there may be a belief, though inaccurate, that the Ministry might use its powers to that end. What the Pharmaceutical Society desires is to limit as far as possible the trading of its members and to divide off the premises of pharmacies from the premises selling other items.
In that context, it was said in the same article of 8th June: It ought to be remembered, though it would not be surprising if it had been lost sight of, that the precipitating factor in the Albert Hall motion"— that is, the motion of the Pharmaceutical Society which was subsequently overruled in the courts— was the inclusion of pharmacy in the American type of shopping 'super centre' 72 which the Society, and no doubt most of its members, felt was an unsatisfactory environment for pharmaceutical practice. There is an important point here. If retail pharmacy were restricted to the premises of individual pharmacies dissociated from shopping centres, from shops or from anything else, as implied in the society's statements, first, this would be contrary to all the trends of modern society and modern planning, trends caused partly by the spread of car ownership and partly by other factors which are familiar to all hon. Members, and, second, the result would be far fewer pharmacies.
As any town planner knows, pharmacy on its own requires an enormous number of people per shop, as it were— far more than any other type of retail business. The service to the public would be restricted. It might well be highly profitable to the individual pharmacists —the prime reason for their interest—but it would be highly restrictive of services to meet the needs of consumers, who want retail pharmacies near at hand so that they may rush out in time of illness and buy pharmaceutical products.
I submit the Amendments for those reasons. I hope that my right hon. Friend will accept one of them, and, also, that he will make clear that the object of the powers which he seeks here is safety, not to provide means whereby a professional society desiring to restrain trade could achieve its object, contrary to the decision of the courts.

§ Mr. Dudley Smith (Warwick and Leamington)
I support what has been said by the hon. Member for Nottingham, West (Mr. English). From a reading of the Clause, it seems to me that the Ministry has taken a sledge-hammer to crack a nut. The whole purpose of the Bill is to provide for better control of potentially dangerous pharmaceutical products, a purpose which we all support, and, no doubt, under the regime to be instituted under the Bill, there must be proper supervision. However, as the Clause now stands, there is a danger that pharmacies, and other outlets, too, would be severely hampered.
If the Ministry were to go the whole hog and introduce regulations controlling building and the host of other matters covered by the Clause, there could be a serious effect on trading in goods other 73 than purely pharmaceutical or proprietary medicines. If fully implemented, such a power could put a burden on retailers. I hope that the Minister will look at the matter again and accept one of these Amendments.

§ Mr. Richard
The speech of my hon. Friend the Member for Nottingham, West (Mr. English) went very wide of the precise terms of his Amendments. If he chooses, in the course of moving a specific and limited Amendment, to make an unprovoked attack on the Pharmaceutical Society, that is a matter for him, and no doubt he takes responsibility for what he says in the House.
On behalf of the Pharmaceutical Society, I take up one point which my hon. Friend raised. He said that the primary aim of the society was to restrict trade in the interests of the profitability of its members. I utterly reject that contention. The whole history of the Pharmaceutical Society, if he looked at the matter with anything like the objectivity which, perhaps, he ought to bring to it, ought to make my hon. Friend wish to withdraw the remark. We have in the Pharmaceutical Society a professional body which, under various Governments and Ministries, has been recognised as having long experience in administering the law relating to poisons and medicines since the very first Act was passed. It enforced the 1933 Act effectively, fairly and impartially. I feel that my hon. Friend ought to withdraw what I can only describe as his scurrilous comments.

§ Mr. English
I hope that my hon. Friend realises that I related my remarks to the society's action on the motion to which I referred, which was denied by the courts, not to its other activities.

§ Mr. Richard
In that case, I take it that the offensiveness of my hon. Friend's remarks was in no way related to the society generally, but was merely part of an attempt to persuade the House that a specific act of the society should not have been taken. My hon. Friend, therefore, withdraws the general imputation which he made against the Society.

§ Mr. Snow
I shall not intervene between my hon. Friends the Members for Nottingham, West (Mr. English) and for Barons Court (Mr. Richard). Essentially, 74 the latter part of the speech of my hon. Friend the Member for Nottingham, West raised a matter which will have to be decided some day, one way or another, as between the Pharmaceutical Society and its members, and I do not think that it is right for us to intervene in it.
My hon. Friend used the expression to which the society took some exception, referring to the concept of a "super-sales centre". A few years ago, a somewhat different American phrase was being used, "frontier pharmacies". But, be that as it may, we know what arrangements are in the retail distributive pattern, and I think that I should leave it at that.
I can tell my hon. Friend straight away that the Government intend to accept Amendment No. 69. I am advised that it makes no change in the meaning at law and that regulations cannot be made independently under subsection (2), but, if the Amendment will help anybody— by "anybody" I mean people other than lawyers—it has some merit, and we propose, therefore, to accept it.
My right hon. Friend is not able to accept Amendment No. 70. In the discussion in Committee on 2nd May, one technical point was not raised. The general ambit of the regulation-making power under the Clause is set out in subsection (1), which lists the substantive purposes for which regulations can be made. The items covered by subsection (2), therefore, are to be regarded as falling within the scope of subsection (1). I am advised that a regulation could not be made about, say, construction or about layout, except in relation to one or more of the matters—for example, paragraph (f)—in subsection (1).
It is, therefore, only partly true that one could under this Clause regulate the layout of the whole of a store selling pharmaceutical products in one small part. It is true only in so far as regulation of layout elsewhere is relevant to one of the purposes set out in subsection (1) in relation to medicinal products. In the example I mentioned just now, paragraph (f), the overriding purpose would be layout relevant to the safety, deterioration or contamination of medicinal products. In view of this interpretation of the subordinate place 75 of subsection (2) to subsection(1), I think that my hon. Friend will accept the reasoning behind our being unable to accept the Amendment.
I assure him that in view of his constituency interests, notwithstanding the views expressed by the Pharmaceutical Journal, for which I cannot speak, these powers are not intended to have any bearing on the position of pharmacists as established by the House of Lords in the recent case which he mentioned of Dickson v. the Pharmaceutical Society.
I hope that the House will agree to the first Amendment, and that my hon. Friend will accept that we cannot agree with the second.