HC Deb 20 February 1969 vol 778 cc899-911

10.5 p.m.

Mr. Peter Blaker (Blackpool, South)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Import Duties (Temporary Exemptions) (No. 6) Order 1968 (S.I. 1968, No. 1948), dated 9th December, 1968, a copy of which was laid before this House on 13th December, be annulled. The Order is made under the Import Duties Act, 1958, the effect of Sections 3(6) and 13 of which is that the Treasury, on the recommendation of the Board of Trade, nay make Orders temporarily exempting goods from import duties, and such Orders are subject to annulment by this House.

The reason why my hon. Friends and I have put down the Motion is that the Select Committee on Statutory Instruments in their Third Report drew the Order to the special attention of the House. As the House knows, the Select Committee considers all Statutory Instruments, not on their merits, but with a view to seeing in general that Ministers are acting with propriety in the exercise of the powers of delegated legislation given to them by Statute. The Select Committee has resolved to draw this Order to the special attention of the House on the grounds that its form calls for elucidation, and that its drafting appears to be defective.

Two points emerge from the Report of the Select Committee. The first point is a regrettable but relatively minor error. The Schedule to the Order, the purpose of which is to exempt temporarily certain goods from Import Duty, defines those products which are to be exempted, sometimes in considerable detail. Most of the products to be exempted are extremely complex chemical products, the names of which I find difficult to pronounce. The chemical industry is evolving so fast that that it is becoming increasingly complex, and it is therefore not surprising that the methods of definition also should become complex.

As is explained in the evidence given to the Select Committee, the object of defining the products concerned must be, first, to avoid overlap, and, secondly, to give to the Customs, which has to administer the Order in Council, a workable method of proceeding.

On page 3 of the Order, under Tariff heading 27.07, the Order provides that there shall be exempt pyridine bases which are estimated by a method which is referred to as method No. RB 1–62 of "Standard Methods for Testing Tar and its Products", published by the Standardisation of Tar Products Test Committee. The Select Committee inquired about the availability of that method to interested parties. The Treasury Memorandum which is published as an appendix to the Select Committee's Report states that the standard method just referred to, RB 1–62, is a method which is out of date. The memorandum continues: It would undoubtedly have been better if the reference in the Order had been to Method RB 1–67 . ."— a method which has subsequently been published.

The Treasury Memorandum concedes that there has been what I conceive to be a simple error on the part of the two Ministries responsible for bringing forward the Order. In view of the great number of Orders published, it is surprising that errors are not more frequent. But the House will agree that it is right for it to insist that the highest standards are observed by the civil servants responsible for drafting Orders and that it is also right for the Select Committee to be as vigilant as it has been in this case.

The second matter is more significant. The Select Committee inquired about the numbering system specified in the rules of the International Union of Pure and Applied Chemistry, referred to in Article 1, paragraph (2), of the Order, which reads: In the said Schedule 1— (a) a reference to I.U.P.A.C. numbering, in relation to a compound having a ring structure, is to be taken as a reference to the system of numbering such compounds specified in the rules of the International Union of Pure and Applied Chemistry. The significant point is that this part of the Order does not say that the relevant I.U.P.A.C. numbering to be applied will be the numbering which is in effect at the time of the Order. The result is that if the I.U.P.A.C. changed its numbering, the Schedule itself, in relation to matters defined by reference to I.U.P.A.C. numbering, would be altered. This, for example, would apply to the item under tariff heading 29.22 on page 21 of the Order, "6-Aminochrysene (I.U.P.A.C. numbering)".

The Order is, in effect, giving to the I.U.P.A.C. the power of delegated legislation. My argument is that this is beyond the powers which were intended to be given to the Minister by the Import Duties Act.

We see two further examples of a similar kind in the Schedule.

One of them appears on page 5 under tariff heading 28.49, Silver protein, mild, which satisfies the requirements of the British Pharmaceutical Codex. Here, again, there is no reference to the Codex published at a certain date or the Codex now in effect. It is true, as stated in evidence and reported by the Select Committee, that this Codex is, at present at any rate, published only every five years with a supplement every two and a half years. I suppose the probability is that there will be no alteration in the Codex while this Order remains in effect, because it only remains in effect until the end of this year. But the possibility remains that the authors of the British Pharmaceutical Codex might decide to change their practice and to amend it at any time. It is this possibility with which the House ought to be concerned.

The third example I wish to mention appears on page 19 under tariff heading 29.16, Antimony potassium tartate, which satisfies the requirements of the British Pharmacopoeia. Here we have an example of a case where the authors of the British Pharmacopoeia could, by changing the requirements which they publish, alter, in effect, the category of imports exempt from duty. This is the matter to which the Select Committee has drawn attention, and I should like to quote from the evidence given to it. At Question 17, the Chairman said: I note that has not been identified by its year of publication?". He was referring to the British Pharmaceutical Codex, and the answer was: Where reference to this is made it is always taken to be the one which is authorised. In the front of the British Pharmaceutical Codex you will see a date of publication always quoted which shows when it came into operation. I am certain that where a year is not specified it does refer to the current volume. If reference were made to a previous volume it would, in fact, say so. Question 18 was: This you are expressing as a matter of custom amongst chemists?". and the answer was: As an accepted and well-established custom, yes. Anyone who wanted to analyse silver protein according to the British Pharmaceutical Codex would use the current volume which is authorised for use. The evidence shows that the assumption, at any rate amongst chemists, would be that the volume referred to was the current volume.

I think that it is perhaps a little ambiguous what "current" means. As I read the evidence, it means the volume which is in effect at the time when it is consulted, and not simply the volume which was current at the time that the Order in question was made. In any event, in all these cases we find that there is a reference to another publication, not itself an Order in Council, which may be changed by the authors of that publication. We do not find anything in the Order which states that the publication referred to must have existed before the date of the Order, or any exact definition.

There are a number of examples where the Order refers to publications or other authorities by a date. On page 51 of the Order there is a reference to glass prescribed by British Pharmacopoeia, 1953". The fact that the year of publication is mentioned reinforces the argument which I am deploying in relation to the cases where no date is mentioned.

The hon. Lady may be aware of the Home Office poisons rules, which are referred to in the evidence published by the Select Committee, where it is the practice to get over this problem by saying that when the British Pharmacopoeia or the British Pharmaceutical Codex are referred to that shall be construed as a reference to the edition or publication having effect on the date on which these rules were made, together with any amendments made thereto before that date". There is no possibility there of delegated legislation, but there is no such limitation in this Order in relation to the three points which I have mentioned.

Thus we object to the Order on the ground that Ministers are exceeding their powers. They were given power by the Import Duties Act to vary or remove duties, and what they are doing is delegating that power to the authors of other publications. I intend no criticism of the authors of these publications. They are worthy publications, and highly reliable, but that is not the point. The point is whether Ministers are acting within the limits of the power given to them by the Statute. The House is very jealous of the powers which it gives to Ministers, not surprisingly. It is increasingly jealous because the numbers of Statutory Instruments is increasing all the time. In 1967 there were something like 2,000 Statutory Instruments which occupied in the bound volumes, nearly 2 ft. of shelving in the Library.

This is why we have a Select Committee and why we attach special importance to its reports. It is why we value the fact that it has the advice of your Counsel, Sir Robert Speed, Mr. Speaker. There are two previous relevant cases which the House ought to bear in mind. In 1963 the Building Standards (Scotland) Regulations were introduced and the Select Committee commented adversely on them. Those Regulations required persons to obey certain British Standards and codes of practice, and they defined those standards and codes of practice as being those which were already published, and also those which were to be published from time to time, and any amendments of the existing Regulations. The Minister concerned withdrew the Regulations and substituted ones which did not offend in that way.

In 1964 the Weights and Measures (Equivalents for dealing with Drugs) Regulations also raised the same point, perhaps in a way more directly comparable to the case before us. There again the British Pharmacopaeia and the British Pharmaceutical Codex were at issue.

That Order specified equivalents between apothecaries weights and metric weights, and it permitted dealers in drugs to use the equivalents. Secondly, it required that after certain dates orders for certain drugs should be carried out in metric weights. The particular part of that Order which is relevant was Article 3, which said that any manufacturer or wholesaler or retail dealer who served or supplied in certain forms, a drug for which a monograph existed in the 1963 edition of the British Pharmacopaeia or the British Pharmaceutical Codex, or any amendment or new edition thereof, should after a certain date comply with certain requirements.

Two of the same documents we are concerned with tonight were at issue. It is true that there is a distinction between that case and this, because originally in the case I have quoted the words "or any amendment or new edition thereof" were used. We are not exactly on all fours with that case. Nevertheless, the present Order does leave it open for someone else, the editors of these publications, to amend the definition and thus to exercise a power of legislation.

When this case was debated in the House in 1964 the point was made that it was a serious one, because criminal penalties might conceivably be involved if there was a breach of the Regulations. I am not clear whether criminal penalties could be involved in the case we are discussing, I imagine not. Even if that is the case, it does not remove the anxiety which we feel on this side of the House about the point to which the Select Committee has drawn attention.

The Weights and Measures Order was debated in this House on 20th April, 1964, when a number of hon. Members, respected for their knowledge of these matters spoke. These included my hon. Friend the Member for Crosby (Mr. Graham Page), the hon. Gentleman, as he then was, the Member for Islington, East (Sir Eric Fletcher), and the hon. Member as he then was for Southampton, Itchen (Dr. Horace King), who said: … the issue we are debating tonight is whether we are prepared to hand over to anyone outside Parliament power to make Jaws which have never been approved by Parliament. I want to remind the House of one or two basic principles. The Statutory Instruments Committee was founded because under the present pressure of business Parliament cannot make laws in the detail which is necessary. What Parliament can do is to make laws, and, in certain parts of those laws, empower a Minister to write out specific details in Statutory Instruments or Orders or Regulations. Ever since Hewart's excellent book, "The New Despotism"—indeed, if not before then—Parliament has been anxious about the power which it gives to the Executive, anxious that that power should not be badly used in any way. Later you added, Mr. Speaker: It is worth pointing out for the record that the Statutory Instruments Committee, which examines thousands of Instruments every year, very rarely has to report one, but I think that when it does report one it has the right to expect the support of its colleagues in the House of Commons"— [OFFICIAL REPORT. 20th April, 1964; Vol. 693, c. 1030–3.] Those words are relevant to the Motion because, as I have said, this is a parallel case.

It may be asked: what is the result if, every time there is a significant change in techniques and the British Pharmacoepia or Pharmaceutical Index is changed, a new Order must be brought before the House? This may be tiresome and mean that many Orders will be necessary, but this happens in many cases. The Ministry of Transport, when acting under the Road Safety Act, 1967, produces a new version of the Goods Vehicles (Plating and Testing) Regulations every time a new standard list appears giving instructions about the testing of vehicles and the methods to be employed. That is a case where a method has been found of avoiding the problem which we are discussing. We may in future find less cumbersome methods of dealing with this problem. In the meantime, we must operate using the methods we have.

Fortunately it is open to the Government to lay an Amending Order to put the matter right. I hope that the House will attach the appropriate weight to the Report of the Select Committee and to the words I have quoted from the debate in 1964. I also hope that the Minister will say that the Government will publish an amending Order to put right both matters to which the Select Committee drew attention.

10.28 p.m.

The Parliamentary Secretary to the Board of Trade (Mrs. Gwyneth Dunwoody)

The Import Duties (Temporary Exemptions) (No. 6) Order, 1968, exempts from import duty for periods of up to a year some 2,500 articles. The definitions of 16 of those articles include references to other documents. In each case these definitions, including the references to other documents, have been agreed with the applicants and the Customs, and have then been advertised in the Board of Trade Journal before inclusion in the Order.

To include in such Orders the relevant extracts from other documents might on occasion—though I do not say this would necessarily be the case here, since we have not sought to proceed in this way—raise difficulties of copyright. It would certainly increase the cost of producing the orders and the price to all purchasers, the great majority of whom have no cause to refer to these other documents. Our proceeding by reference is a long-standing practice, which trade and industry have found acceptable. We have received no objections to our advertisements from the public on this score, and have had no difficulties in practice.

I can assure the House that all the documents referred to in the No. 6 Order are standard works of reference in their particular fields. They will certainly be well known, and readily available, to persons in laboratories likely to have to refer to them in connection with the No. 6 Order. I therefore believe that it is reasonable to make such definitions by reference. I do, however, think that it may be for the greater convenience of some purchasers of these Orders if we were to include the addresses of the publishers of the other documents mentioned. This we intend to do in future.

Even in the case of Tar Test Method RB1–62, which relates to the Fifth Issue of the "Standard Methods for Testing Tar and its Products" published in 1962 but superseded by the Sixth Issue in 1967 before this Order was made, I am assured there has been no difficulty of access. It is not even necessary to obtain the whole publication, as copies of the relevant method are freely available on request from the publishers. Moreover, the method is reproduced in an identical form in both the 5th and 6th editions. Nevertheless, I readily accept that our reference to only the earlier edition may cause some unnecessary confusion. Either edition will do, and it would have been better if we had made that quite clear.

Where it is necessary to refer in an Order to another document it is desirable that there should be no doubt as to which is the relevant issue of that document. In those cases where no specified issue has been mentioned in a temporary exemption Order, it has been, and will continue to be, the practice of Customs to treat the reference as applying to the issue of the document current at the date of making the Order. That is a slightly different definition from that given by the hon. Gentleman.

In practice, there has never been any problem. Nevertheless, I accept the need for absolute clarity in this matter. In future, therefore, we shall include a note in these Orders to make it clear that references to other documents are to be construed as references to the issues of those documents current at the date the order was made, unless reference is made to a different specific edition.

The hon. Gentleman mentioned the question of sub-delegation. The documents mentioned in the No. 6 Order existed before it was made. They are not amended very often and we usually know some time in advance if any amendments are in prospect. But the possibility of any sub-delegation in practice from such subsequent amendments is avoided by our administrative practice, which I have already mentioned, and any doubts on this score will in future be entirely removed by the additional note which we intend to insert.

I agree that the form of this Order could be improved, but its deficiencies do not go to the substance and I am confident that the Order will not cause difficulty in practice or undue inconvenience to anyone. Accordingly, I think that it would be reasonable for the Order to stand, rather than put commerce and industry to the inconvenience and cost of replacing it by a revised Order. I therefore commend the Order to the House.

Mr. Blaker

The hon. Lady said that in future the Department would make a practice of including a note in the Order, which I take it would be part of the Order and have statutory effect, explaining that the references to other documents are references to the editions in force as the date of the order. I welcome that statement. But is it the hon. Lady's intention to leave this Order as it stands without an amending Order, which would be a simple matter?

Mrs. Dunwoody

I hope that the hon. Gentleman will accept that we do not believe that there has been any real problem. We are grateful to the Select Committee for drawing this matter to our attention, but we are satisfied that the Order as it is should stand if it can be accepted by the House that it is our intention, in case there should be even the remotest misunderstanding, to add a further footnote to any future orders.

10.35 p.m.

Mr. R. Graham Page (Crosby)

I am astonished by the hon. Lady's speech. She started by answering a question which my hon. Friend the Member for Blackpool, South (Mr. Blaker) did not put. Nor did the Select Committee put it to the House. It is the Select Committee's duty to consider whether documents referred to in a Statutory Instrument and not brought into the Statutory Instrument are available and easy of access to the public. It is quite proper to draw a Statutory Instrument by referring to such documents.

The Select Committtee, after hearing the evidence in this case, was satisfied that it was proper within the Statutory Instrument to refer to these documents and not copy them into the Instrument. But that is not the point. The hon. Lady has spent a considerable time in answering something which was not put to her. But the hon. Lady has informed the House that this Instrument is wrong in form, that it is sub-delegation of legislation. That is something far beyond the powers of the Minister, yet she does not intend to have an amending Order but says that in future Orders there will be included what should have been included in this one in the first instance.

I thought that this matter had been settled in 1963, when we had a very full debate on this matter on the building Regulations relating to Scotland. They were withdrawn when exactly this point was raised. Unfortunately, another Ministry had not noticed that this had happened in 1963 and brought forward a similar sort of Order in 1964, the Weights and Measures Regulations. These, too, were amended on the House's attention being drawn to them.

Why the hon. Lady has refused to bring in an amending Order in this case is beyond my comprehension. There can be no doubt of the practice of this House, whatever the practice of the Customs may be. To speak of documents like the Pharmaceutical Codex or the Pharmacopoeia—published periodically, every 2½ years in one instance and another period in the case of the other— without mentioning the date of the documents read into the Order is giving the authors of such documents the power to legislate for this House without bringing it before the House.

This was recognised in 1963. I beg the hon. Lady to realise that neither she nor the Department loses face when attention is drawn to these technical points, which, although technical, have a great constitutional bearing on the powers of this House. For an amending Order she needs only a single Article saying that the documents referred to in the Instrument are those in operation at the time of the Instrument. She says that she will put it in future Orders but will not amend this one. She should think again.

Mrs. Gwyneth Dunwoody

With permission, Mr. Speaker, I would like to speak again to clear up certain points. I assure the hon. Member for Crosby (Mr. Graham Page) that loss of face does not concern the Board of Trade. Although we are grateful to him, I hope he will accept that some of his language has been a trifle highly coloured.

Perhaps I can expand a little on the implications of the suggestion that we should produce an amending Order. To produce an amending Order would take eight days and would mean incurring £550 in printing costs. Checking and passing the work would add to both the period and the cost. If this Order were withdrawn, there would be a period of several days during which goods normally subject to temporary exemption might be dutiable or subject to delay in clearance unless extra-statutory concessions could be authorised.

Mr. Graham Page

I did not suggest producing another Order of this volume. This is a complicated Order, expressing itself in long words no one can pronounce. Of course that would be expensive. I only want a one-sheet Order putting in the poisons sheet article referred to by my hon. Friend.

Mrs. Dunwoody

I feel that there is an implication that we are being unnecessarily difficult. I am prepared to look at this again, but I repeat that this is not a problem which has arisen in practice, and I emphasise that. It is our practice to bring these Orders forward for a considerable number of years. We have taken note of the feelings of the Select Committee. We feel that this is not, in practice, a problem, but we are prepared in future to write in any extra clarification that should be thought necessary.

I must point out that over a considerable period we have been bringing forward precisely these Orders without any trouble, and at present we must ask for the Order to stand.

10.40 p.m.

Mr. Blaker

I am grateful to the hon. Lady for at least saying that she will look at the matter again, and I press her to go even further.

My hon. Friend the Member for Crosby (Mr. Graham Page) has rightly pointed out that we are not asking the Government to withdraw the Order. There is no reason why there should be any lacuna in the law or withdrawal of the Order. It can stand until the new amending Order is laid, which could be done relatively quickly. Even if it cannot be done in, say, a week, let it be done. Why cannot the Government introduce a one clause amending Order, using the wording employed in the Poisons Regulations, which is a perfectly simple blanket clause? It would clear up all the points whether there is a problem about sub-delegated legislation.

The Minister could look at the amending Order brought in in 1964 to clear up the weights and measure case. In the debate on that Order on 20th April, 1964 there was a speech by my right hon. Friend the then Minister of Health in which he argued vigorously that no problem was presented by the original Order. She will find that after a very vigorous debate, which was longer than we shall perhaps have tonight, with a very distinguished cast of speakers, including the present Speaker of the House, the then Minister of Health made the concession and said clearly that he would put the matter right. He did so a few weeks later by a simple, one-clause amending Order. I cannot see what problem would be caused if the hon. Lady did the same.

Many of the facts the hon. Lady mentioned are not on the point. The fact that these Orders are agreed by industry is not the point, nor it is the fact that the practice used is a long-standing one. It has been wrong if it has been a longstanding practice, and it is still wrong. That was settled by the two debates to which my hon. Friend has referred. The fact that a problem has not in practice arisen is not the point. The fact that the works of reference referred to are standard and respected works is not the point. The fact that the Ministry is prepared to include or supply the addresses of the compilers of those works is not the point.

The point is the powers of the House of Commons in relation to Ministers. The House has attached importance to this through hundreds of years of history. I quote again the words of Mr. Speaker: It is worth pointing out for the record that the Statutory Instruments Committee, which examines thousands of Instruments every year, very rarely has to report one, but I think that when it does report one it has the right to expect the support of its colleagues of the House of Commons."— [OFFICIAL REPORT, 20th April, 1964; Vol. 693, c. 1033.] Those are the words to which I should like the Minister to pay attention. If she thinks it right to say that in future such Orders will include a note to the effect that the works of reference referred to are those already published, why is it not right to do the same with this Order by introducing a simple one-clause amending Order?

The Select Committee, of which my hon. Friend the Member for Crosby is Chairman, has clearly set out its views. It has clearly stated that the situation is unsatisfactory. It follows, therefore, that the situation ought to be remedied. I very much hope that the Minister will state magnanimously that she is prepared to think again and that she will undertake to put the matter right by a simple Amending Order.

Question put and negatived.