Clause 76 (Hansard, 24 June 1968)

§ Mr. Deputy Speaker
The next Amendment selected is Amendment No. 76, with which we may discuss Government Amendment No. 92.

§ Mr. K. Robinson
I beg to move Amendment No. 76, in page 66, line 31, after 'Act' insert: 'or who contravenes any regulations made under section 71(2) of this Act'. The Amendments are designed to correct an omission which we noticed during the Committee stage, namely, that the Bill did not provide for an offence for contravening regulations under Clause 71(2) imposing further restrictions or other requirements with respect to the use of titles, descriptions and emblems associated with pharmacies and pharmaceutical practice. Amendment No. 76 remedies the omission and applies the same penalty, a fine of up to £100, as is applicable to contraventions of Clause 70.
Amendment No. 92 makes the Pharmaceutical Society the enforcing authority for contravention, as it already is under the Bill for contraventions of Clause 70.

§ Mr. Richard
I beg to move Amendment No. 115, in page 66, line 33, at end insert: (3) Save as provided by subsections (1) and (2) of this section, any person who is a body corporate which carries on a retail pharmacy business otherwise than in accordance with the provisions of Part IV of this Act, shall be guilty of an offence, and liable upon summary conviction to a fine not exceeding £100. I am grateful for the opportunity of moving this Amendment, particularly since a similar Amendment in almost identical form appeared on the Notice Paper last Thursday, but was, unfortunately, out of order. This goes slightly further than the Amendment which was moved by my right hon. Friend to Clause 76. It makes the carrying on of a retail pharmacy business, otherwise than in accordance with the provisions of Part IV of this Measure an offence, liable upon summary conviction to a fine not exceeding £100.
May I tell the House what is behind this Amendment? Under the 1933 Pharmacy and Poisons Act, Sections 8, 80 9 and 10 set out conditions precedent for authorised sellers of poison. The provisions of these Sections have been repeated, with minor changes, in Clauses 62, 63 and 64 of this Bill. The trouble is that Sections 8, 9 and 10 of that Act contained a rather large omission which has now been perpetuated in this Bill.
What was omitted was any penal sanction at all to ensure the continued observance of the conditions after registration in relation to the general conduct of the business. Unless a poison could be purchased in the absence of the pharmacist, which was contrary to Section 18 of the Act, no proceedings could be taken either for failure to keep the business under the personal control of the pharmacist, or even failure to appoint a superintendent when the holder of that post leaves the company.
This type of circumstance ought to be covered by some enforcement provision. Since the omissions of the 1933 Act, which has made enforcement extremely difficult, has been perpetuated in the Bill, it will mean that its enforcement will be that much more difficult. May I give two examples of the sort of situations which ought to be covered but which are not.
One instance of which I have been given details concerns a pharmacy which was registered in April, 1963 by a limited company of which there were two directors, neither a pharmacist. There was a superintendent, but he was not a member of the board. In March, 1966, the superintendent alleged that the directors were keeping the pharmacy open when neither he nor any other pharmacist was present. There were two visits by an inspector and correspondence ensued. On 30th July, 1966, the superintendent left the company, and a form for notification of the appointment of a superintendent was sent to the company, with two letters of reminder following up the formal notice.
In August, 1966, a company director telephoned the Pharmaceutical Society to say that he was complying with the law, as he had a locum. There was additional correspondence which showed that he was not complying with the law. In October, 1966, there was a special visit by an inspector, and in November, 1966, a new pharmacist was appointed. Although there was no further difficulty, 81 there had been no superintendent for that business from 30th July until 9th November, 1966, and there was nothing that anyone could do about it because of the absence of some such provision as is set out in my Amendment.
One other example is even more apposite. On 1st November, 1966, a pharmacy was registered by a limited company. In February, 1967, there was a complaint, and an inspector visited it. He ascertained that the pharmacist was never present on Saturdays, although the pharmacy remained open. In March, 1967, there was a letter to the superintenddent advising him that this did not meet legal requirements. There was more correspondence and more visits and the matter was left unresolved.
In June, 1967, the inspector again learned that the business was open on Saturday afternoon, with no pharmacist present. It was not until 1st July, 1967, that an agent was able to purchase two Part I poisons which brought the Act into force. If it had not been for the purchase of these poisons the problem would have been left unresolved, and the most unsatisfactory situation would have continued, to the disadvantage of the public.
I have another example, in which a director of a company insisted on opening a business without a pharmacist being present. Again, nothing could be done until the provisions of the 1933 Act were brought into force. Had it been possible to take proceedings quickly for non-compliance with the basic requirements of the Act, this situation would, and could, have been dealt with much more quickly. It is this omission which is perpetuated in the Bill, and which my Amendment is designed to cover.

§ Mr. Snow
I have listened with some sympathy to the careful presentation of my hon. Friend's Amendment. I cannot find fault with the evidence that he has produced. My only real concern is about the strict interpretation, for instance, by the Pharmaceutical Society of the existing law, in the case that I think he may have been referring to when asking for an alteration to the Bill. This is largely a question of whether such an Amendment is apposite to this sort of Bill which follows the same principles, as my hon. Friend has said, of the Pharmacy and 82 Poisons Act, 1933. Whatever merit this proposal may have on its own, it seems that in the context of the Bill it would be out of place.
There may well be arguments for suggesting that a pharmacist ought simply, as a pharmacist, to organise his business in a particular way prescribed by law. But this is not the approach of existing legislation or of this Bill. Under existing legislation such a principle has not been followed. At present, the statutory control of the pharmacist's business is related to his sales of poisons. Under the Bill, control is likewise related to the conditions on which medicinal products are sold.
It would represent a fundamental departure from the present conception if we were to make the conditions for the lawful conduct of a pharmacy business enforceable in themselves. It would be a discriminatory departure too, which it would be hard to justify, if this change were to be made, as the Amendment proposes, only in the case of bodies corporate and it were not to apply to individual pharmacists or partnerships.
As the Bill stands, where something can be done only by a person lawfully conducting a retail pharmacy business, for example, the sale of medicinal products not on the general sale list, there will be an offence which can be directly prosecuted if that act is done by a person including a body corporate, which is carrying on his business in such a way that he is not a person lawfully conducting a retail pharmacy business within the meaning of Clause 61.
The practical effect of the Amendment would seem to be to extend the possibility of prosecution, in the case of bodies corporate, to cases where there is no evidence that an act otherwise forbidden by the Bill had been committed, or where the act in question was one which was not restricted to persons lawfully conducting a retail pharmacy business, for example, selling general sale list products. My hon. Friend was on strong ground in wishing to perfect the enforcement position of the Pharmaceutical Society. The firm I think he had in mind in the first example was not an authorised seller of poisons during the period when it had no superintendent. It did not satisfy the conditions under 83 Section 9 of the 1933 Act, and there could have been a prosecution if a poison was sold.
This is a very complex matter. My main case is that what my hon. Friend is attempting to do does not conform with the general pattern either of the Pharmacy Act or this Bill, and in the circumstances I hope he will consider withdrawing his Amendment.

§ Mr. Ogden
There is one point on the matter of bodies corporate as distinct from persons or partners. The Parliamentary Secretary will appreciate that the Amendment is as near as my hon. Friend the Member for Barons Court (Mr. Richard) and I have been able to get, with Amendment No. 77, to conforming as he said, but while he has moved some way, by Amendment No. 76, towards accepting the point of view, put forward in Committee, that it would be more appropriate to have offences for the majority of the cases under Part IV of the Bill than the one or two cases he has suggested, we suggest that it may be for him to consider whether there are more cases under Parts III and IV which should be offences.
My hon. Friend agreed there was some case made out by my hon. Friend the Member for Barons Court, and as, during all the proceedings on the Bill, from Second Reading until now, he has accepted at later stages ideas put forward at earlier stages, he might have a look at this again, to see whether there is more in my hon. Friend's case, which he has accepted in part, for making an Amendment in another place.

§ Mr. Snow
I should be less than frank with my hon. Friend if I were to say that any further looking at this Amendment would result in our changing our mind. We have thought about this matter very carefully, and are indebted to my hon. Friend the Member for Barons Court (Mr. Richard) for bringing it up so that is could be discussed.

§ Mr. Richard
I may return to the charge, if not on this Bill, perhaps on another occasion, but in view of what my hon. Friend the Parliamentary Secretary has said I beg to ask leave to withdraw the Amendment.