§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, this is, I trust, positively my last appearance to-day. The Pharmacy and Medicines Bill is a Bill which represents a sustained and co-ordinated effort to improve the law on what is a difficult and complicated subject. As matters stand, there are quite a number of Acts of Parliament on the Statute Book which collectively go by the name of Medicines Stamp Acts. The first of them was as long ago as 1802. I think it was a High Court Judge who, having to apply them on one occasion, was pleased to observe that this "bundle of legislation" was nothing but a "mass of confused verbiage." I think it will at once be seen that they are admittedly out of touch with present conditions. They cannot be adequately enforced. They are supposed to be carried out for the purpose of revenue, but the revenue produced is very small. All sorts of almost meaningless exemptions have to be allowed for. I will give your Lordships one example which I recall because I was interested in this matter when I was Chancellor of the 941 Exchequer. There is an exemption, I believe, for certain remedies which arc in "the book prescribed in the name of Sir Harbottle Grimstone." Sir Harbottle Grimstone was a Speaker of the House of Commons, I believe, in the days of Charles II, but what it has got to do with the modern application of the law relating to medicines is very difficult indeed to explain.
This Bill does quite a number of things. In the first place it repeals altogether, in Clause 11, the duties of Excise and the Medicine Stamp Duties—represented very often by a little paper fastener over the capsule or bottle—and also the 5s. duty which is exacted from those who sell medicines. As I have said, they produce very little revenue, and we have at present in operation a much more effective instrument: the Purchase Tax. That is one thing it does. Another matter which is of very great importance, and I believe is recognised as such by our medical advisers and others, is that it provides in Clause 8 that there must be a disclosure on the label or bottle of the composition of medicines which an offered for sale to the public. This does not apply, of course, to the making up of your particular prescription by your particular doctor for your particular complaint, which is excepted by a proviso in subsection (1) of the clause. With that exception, henceforward it will be unlawful for there to be a sale of any article recommended as a medicine unless there is written so as to be clearly legible on the article or the label affixed thereto or on the container, information as to what is the proper designation of that which is being sold, each of its constituents, and also the proportions in which they are mixed.
I cannot doubt that that will be welcomed by a very large part of the thinking public. I cannot conceive on what grounds it should be thought proper that so-called medicines, which may contain heaven knows what, should be sold under some fancy name when nobody knows what is in them. Some analyses, I believe, have produced very surprising information. There is the further point that if you do call in your doctor, having previously tried to doctor yourself, it is a very considerable advantage, so I am informed, that he should be able to know what it is you have previously teen dosing yourself with. If you show him the bottle he can judge from the prescription what is the nature of the 942 remedy you have hitherto tried to cure yourself with. Clause 8, I venture to think, will very strongly recommend itself to your Lordships.
Then there is a clause very much limiting the right to advertise remedies alleged to be available for certain diseases. This is Clause 5, which says thatno person shall take any part in the publication of any advertisement referring to any article, or articles of any description, in terms which are calculated to lead to the use of that article or articles of that description for the purpose of the treatment of human beings for any of the following diseases, namely, Bright's disease, cataract, diabetes, epilepsy or fits, glaucoma, locomotor ataxy, paralysis or tuberculosis.I can imagine it being said that it is not necessarily a very scientific way of proceeding, to put in this clause a selected list and to that extent an arbitrary list. I imagine that these diseases are specially mentioned because they are all serious diseases, all diseases which, according to the best medical science, call for early treatment by skilled advice, and fearful mischief can be done if, owing to plausible advertisements, people who are 'really suffering in the early stages abstain from getting the medical help they ought to get. There is a further and analagous provision in Clause 6 of the Bill, which provides similarly that there shall be no advertisement of articles "in terms which are calculated to lead to the use of that article for procuring the miscarriage of women." That proposal is the result of the recent Report of a Committee presided over by Sir Norman Birkett, and is, I venture to think, a very important part of the Bill.
Lastly, we have the provisions which are contained in Clause 9, and which are very important and also very much more complicated than anything else, because of the nature of the subject. The title of Clause 9 is "Restriction of sale of medicines by unauthorised persons." We must not forget the history of the matter. As long as there were stamp duties on medicines, however imperfectly enforced, the existing law operated to give a very considerable advantage to the chemist, because there was quite a large class of made-up medicines, proprietary articles, which if sold by the chemist were free of tax, but which if sold by other people had to pay tax. That, of course, gave, and rightly gave, a considerable advantage to the chemist, who is a skilled 943 man and who knows pharmaceutical science. If the stamp duties are abolished, everybody stands on a level in that respect. I venture to think—and I hope that your Lordships will agree with me—that it is right to provide as a general rule, and apart from some exceptions which are mentioned, that the sale by retail of an article "consisting of or comprising a substance recommended as a medicine," ought to be in the hands either of a registered medical practitioner or of a registered dentist, or of a chemist, who is described in rather forbidding language in this Bill as "an authorised seller of poisons "—a technical way of referring to him! There have to be added to that list a certain number of individuals who are at the time of the passing of the Act carrying on business on their own account "which comprises the retail sale of drugs" and who themselves have been apprenticed to a registered chemist or to a corporate body which is entitled to sell certain medicines or poisons. That last class will pass away, because the test is that the individual is doing it now.
That is the substance of Clause 9, but there follow some limitations upon that general rule which I hope your Lordships will also think are reasonably framed. This is, as I have said, a very complicated matter. Subsection (4) of Clause 9 contains the provision that it shall be a defence for a person charged with selling medicines, not being a chemist, a doctor or a dentist, to prove that the sale was effected at a shop and that the article consisted whollyof a substance produced by drying, crushing, or comminuting … a plant or plants or any part thereof or of a mixture the sole ingredients whereof are two or more such substances or of a mixture the sole ingredients whereof are one or more of such substances and water.That is, of course, a provision offering protection to the herbalist's shop. There is a further protection to which I will refer in a moment. It is also to be a defence if the sale is a sale "of a natural mineral water, or an artificial imitation thereof."
Subsection (5) is a necessarily complex provision, which I shall not on the Second Reading of the Bill detain your Lordships by endeavouring to explain line by line. The substance of it is that those who are not chemists or doctors or dentists are entitled to sell at a shop an 944 article of a medical kind if it is sold under a proprietary designation—"Smith's Liver Pills" or whatever it may be—and if it satisfies one or other of the three conditions which follow. The first is that the substance which is thus being put forward as a medicine is not comprised in the British Pharmacopoeia or in the British Pharmaceutical Codex, those two being the authorised and exhaustive lists of approved drugs used in the regular practice of medicine. The second is that, if the substance was one which was in those lists, the article is not sold under a title which includes any word or words "which constitute or form part of the description" in those lists. The third condition is that if the substance is sold under the title contained in the British Pharmacopoeia it will still be ligiti-mate to sell it if it is shown that at the date of the passing of the Act it "was ordinarily being sold by retail under that title," and thatnot more than one other substance recommended as a medicine, being a substance described in any other such monograph".—that is, in any other part of the list—was ordinarily being sold by retail under a title which included both the same proprietary designation and any word or words which constitute or form part of the description set out at the head of that other monograph.The substance of that very involved language is this. The herbalist—on whose behalf, I understand, my noble friend Lord Plumer has an Amendment on the Paper—is not entitled to claim to vend his wares without giving a description of what is in them. If that is the issue, I am prepared to meet it very straightforwardly, because I most strongly urge that that principle is a good one, and that there should be a description of the contents of these medicaments in order that those who buy them may know what they are. Apart from that, however, the herbalist's shop will, under subsection (4), be able to sell things which are dried or crushed or comminuted, in the nature of herbs or plants, which I apprehend to be the main principle of herbalism. Beyond that, if the herbalist chooses to sell an article under a proprietary designation as "So-and-so's prescription" for this, or that or the other, and complies with the conditions in subsection (5), he will still be able to carry on his business.
945 I do not think that at this stage of the Bill your Lordships would wish me to give a. more detailed account of it. I have called attention to its main provisions. It is a Bill which has passed the House of Commons, and indeed the abolition of the duties has been announced by the Chancellor of the Exchequer. It is, I venture to think, a matter of considerable importance that we should endeavour to get the Bill passed into law now, and I move its Second Reading.
§ Moved, That the Bill be now read 2a—(The Lord Chancellor.)
§ VISCOUNT PLUMER had given Notice that on the Motion for Second Reading he would move to leave out all words after "That" and insert "this House declines to proceed at the present time, when all national attention and effort are devoted to the task of winning the war, with a Bill which, by proposing to grant a trading privilege to pharmaceutical chemists in the sale of medicine and to deprive herbalists of their existing right to sell many herbal medicines raises highly contentious questions not connected with the war, and requires more time for consideration than is now available for that purpose."
§ The noble Viscount said: My Lords, I ought in the first place to give you a personal explanation of why I am moving this Amendment. I do not often address your Lordships' House, and perhaps I may not be as well versed in the rules of procedure as I should be. If, therefore, I make any mistakes I hope your Lordships will excuse me. During the last war I incurred a rather serious personal injury, and this went on until 1935, when I was recommended to go to the Herbalists' Society for treatment. I went, and I was cured. After I was cured I was asked if I would become Chairman of the Society of Herbalists. That is the society which was formed for those practising herbalism, those who had benefited by the treatment of herbalism, and those who were interested in the study of herbalism. It is a society which is not connected financially with the trading body, the Society of Herbalists, Limited. This society, although only formed in 1936, had at the outbreak of war over 8,000 members. It was felt that, because the names of the two bodies, the trading company and the Society of Herbalists, were the same, it was advisable that one of the members of the council of the society 946 should be on the board of the trading company. I, as Chairman, was asked to take a seat on the board. Therefore I am both Chairman of the Society of Herbalists and a member of the board of directors of the Society of Herbalists, Limited.
§ I do not think it is necessary for me to go fully into the science of herbalism, but in another place there was such a deplorable ignorance shown of what herbalism is that a few words might be advisable. Herbalism is the oldest healing science, and it dates back far past the Greeks or the Romans, or even the Egyptians. It was, as your Lordships probably know, the recognised means of cure through the Middle Ages, and every monastery and nunnery had its garden for this purpose. At the time of Henry VIII an Act was put on the Statute Book, which has never been repealed, legalising the practice of herbalism. I do not know whether that is known to all your Lordships. The original purpose of the Bill, as the Lord Chancellor has said, was to repeal the Medicine Stamp Duty. The Government wish to give the chemists some privilege in return for the loss they are going to suffer, but I do not see why in recompensing the chemists, the herbalists should be made to suffer as they are going to suffer.
§ The Bill, under Clause 9, gives the sole trading privilege to the chemists, and it does—here I am afraid I have to cross swords with the Lord Chancellor—cut out and prevent herbalists from selling in their own shops their own mixtures and what they have made up there. A further point to which we object is that this Bill was rushed through another place. It was printed on a Thursday, the Second Reading was taken on the following Tuesday, and the subsequent stages were taken with equal rapidity. Notice of the Bill in this House was given only last Friday, it is coming up for Second Reading to-day, and I see that the Committee stage has been put down for such an early day as does not give very much time for any consideration. I cannot see the urgency of this. There is no real necessity for rushing this Bill through, and that is why I am moving my Amendment.
As the Lore Chancellor has taken the different clauses, perhaps I may be allowed briefly to explain why, and for
what reason, herbalists object to the Bill. To Clause 5 we have no objection at all. Clause 6, which deals with the prohibition of advertisement relating to abortion, we feel would be considerably strengthened if it referred also to the use of contraceptives. I fail to see why that has not been added to the Bill. At the end of Clause 7 there is a short subsection which says that:
No prosecution for a contravention of any of the provisions of the last two preceding sections shall be instituted without the consent of the Attorney-General or Solicitor-General.
The two following clauses, Clause 8 and 9, which affect herbalists, are not protected in that way. Why, I fail to understand. With reference to Clause 8, herbalists do not in the least object to placing on the labels the proper designation of the substance recommended as a medicine, but in the matter of the quantitative particulars of the constituents the Bill is asking herbalists to give something which it is impossible for them to give.
Before the Select Committee of the House of Commons in 1914, Mr. Parry, who was, I believe, the leading public analyst for the Government at that time, gave evidence. I have his evidence here, though I am sure your Lordships do not wish me to weary you by reading a very long account of it. Perhaps I should read a few paragraphs. He said:
There remains a group of vegetable extracts, of which dandelion and gentian are familiar examples. But even simple vegetable extracts are really highly complex bodies, and the exact composition of these is still unknown to chemistry. Unless one of these, therefore, possesses a marked smell or taste, or if, possessing such, its smell or taste is masked by the greater smell or taste of some other similar substance, it cannot in many cases be specifically identified.
In other words, herbalists are asked to state quantities which, according to the Government analyst, it is impossible to find out. I should like your Lordships to take that in conjunction with Clause 12, which is the enforcement clause. This Bill places enforcement in the hands of the inspectors of the Pharmaceutical Society, who are the trade rivals of the Society of Herbalists. I do not think the Society of Herbalists can expect very gentle treatment at the hands of these inspectors, who would have the privilege of walking into any herbalist's shop, taking samples, and having them publicly
analysed. This provision regarding quantities was only put in on the Report stage of the Bill in another place, and it is the only part of this clause to which we object.
§ We now come to Clause 9, which, according to the Minister of Health and the Parliamentary Secretary, is the safeguard which has been given to herbalists. They both maintain that they have no wish to harm the practice of legal herbalists. I contend that neither of these provisions, neither subsection (4) (a) of Clause 9 nor the whole of Clause 5, is any protection to herbalists. To bear me out I have taken Counsel's opinion on this matter. The Minister said that subsection (4) (a) of Clause 9 was a safeguard. I went to Mr. R. M. Montgomery, K.C., who has given me consent to use his name. He is considered one of the leading counsel on anything appertaining to health legislation; in fact I believe he acts for the Ministry of Health itself. I am sorry to worry your Lordships with this matter, but the noble and learned Viscount on the Woolsack has said we are fully covered by this clause, and, therefore, I think I must read this opinion of Mr. Montgomery, which refutes that just given by the noble and learned Viscount.
Mr. Montgomery writes:
I am instructed that a large part of the preparations of the Society of Herbalists, Limited, are liquids, such as oils, tinctures and extracts, produced from herbs by liquid processes such as macerating, infusing, decocting, boiling or distilling.
I am told that it has been suggested in Parliament that if such liquids are sold as a medicine at a shop the words of subsection 4 (a) of Section 9 of the Pharmacy and Medicines Bill (as amended in Committee) (when the Bill becomes the Pharmacy and Medicines Act, 1941), would provide a defence to a person prosecuted for selling an article in contravention of any of the provisions of subsection (1) or (2) of Section 9 of the Bill (when it becomes an Act).
There is not the slightest foundation for any-such suggestion. Such an argument would meet with contempt in any Court of Law; and if such a suggestion has been made it must have been made either without legal advice or on a complete misunderstanding of the question at issue. Nor would it make any difference if the medicine contained, in combination with a liquid produced by any of the means above described, some substance produced solely by drying, crushing or comminuting a plant.
That, I think, is sufficient in regard to subsection (4). When, in another place
this was put to the Minister and the Parliamentary Secretary of the Ministry of Health, they fell back on subsection (5). Therefore, a further opinion has been obtained from Mr. Montgomery on the effect of that subsection.
I am sorry it is rather a long one, as I am afraid I shall have to read it to your Lordships It is as; follows:
It seems now to be recognised that subsection (4) of Section 9 of the Pharmacy and Medicines Bill is useless as a protection to herbalists. But it is asserted that subsection (5) of Section 9 affords adequate protection for the, carrying or of their legitimate business. Such an assertion can be made only in complete ignorance of the facts and the issues at stake.
Subsection (5) makes it necessary that the article sold (always I think a substance recommended as a medicine to be taken internally or applied externally) must be sold under a proprietary designation, no matter how ordinary are its contents, for example, witch hazel, but this difficulty could perhaps be surmounted. In order, however, to provide a defence to a prosecution it would be necessary to prove something additional—the addition being one of three alternatives contained in paragraphs (a), (b) or (c) of the subsection.
I deal with these paragraphs in turn. Paragraph (a) would be of value only in the case of medicines not described in the British Pharmacopoeia or British Pharmaceutical Codex at the date when the present Bill becomes an Act, if the substance has previously been sold under a proprietary designation. This would prevent the sale in future of any medicine containing such a simple constituent of gentian root (gentianæ radix) which has long been sold by herbalist;! under the general proprietary designation of culpeper (a proprietary designation used in connection with scores of other medicines prepared by or for the Society of Herbalists. Many other simple examples can be supplied. So that for the essential part of the herbalist's business subsection (5) (a) provides no defence.
Then does subsection (5) (b) provide a defence? The answer is that it docs not. Take again a simple example of gentian. The word 'gentian' forms part of the description set out in the title of a monograph in the British Pharmacopœia. Yet in order to provide a defence under subsection (5) (b) it is necessary to prove that the article is not sold under a title which includes the word gentian.
Then is subsection (5) (c) of any more service to protect the herbalist in carrying on his legitimate business? Clearly not; because in order to provide a defence under that clause proof must be forthcoming that in addition to (say again) gentian not more than one other substance (making two in all) described in the British Pharmacopoeia was ordinarily being sold at the date of the passing of the Pharmacy and Medicines Act (now only a Bill) under the same proprietary name (say culpeper) as gentian, and any word forming part of a description of that other substance in the British Pharmacopoeia. But not only one or two but many other medicines besides gentian
prepared by or for the Society of Herbalists have long been sold under the proprietary designation of culpeper, and under names forming part of the description of a monograph in the British Pharmacopoeia. A simple tiling like myrrh occurs in the title of a monograph in the British Pharmacopoeia and has been ordinarily sold by herbalists under the designation culpeper. So does witch hazel; so does cascara sagrada; so do many other herbal medicines. This fact destroys the defence which might otherwise be open to at any rate some herbalists under subsection (5) (c) because the fact that there are at least three of such substances (for example, witch hazel, myrrh and gentian) which before the passing of the Act were ordinarily sold as described destroys the supposed defence.
Of course if Section 9, subsection (5) (c) (ii) were eliminated and the defence could be based on subsection (5) (c) (i) taken by itself the position would be vastly different. But I repeat that subsection (5) of Section 9 as it stands is no protection against the complete destruction of the legitimate business of herbalists through prosecutions initiated at the instance of some member of the privileged class of chemists.
That is, I think, a very emphatic answer.
§ I do not think there is anything further that I can say. I have tried to point out to your Lordships that the safeguards which supposedly are in this Bill to protect herbalists are not there, and we as a society feel that we are being made the victims of a bargain between the Government and pharmaceutical chemists. It seems to me that at this time it is quite unnecessary for a Bill of this sort to be brought forward, and I fail to see how in any way it can be helping the war effort. We are fighting for freedom of speech and action, and liberty of people to choose for themselves. By this Bill you are taking away from a very large number of people that liberty of choice; you are preventing them from using or being allowed to use herbal preparations which have been in use for centuries. I personally feel that the case has not been made out for this Bill, and I beg to move the Amendment which stands in my name on the Order Paper.
Leave out all words after ("That") and insert ("this House declines to proceed at the present time, when all national attention and effort are devoted to the task of winning the war, with a Bill which, by proposing to grant a trading privilege to pharmaceutical chemists in the sale of medicine and to deprive herbalists of their existing right to sell many herbal medicines, raises highly contentious questions not connected with the war, and requires more time for consideration than is now available for that purpose.")—(Viscount Plumer.)
§ LORD ADDISON
My Lords, I am sure we have all listened with great sympathy to the statement of the noble Viscount, but I must say that it seems to me he has somewhat confused the issue. It appears to me a pity that if a measure of this kind is required generally in the public interests Parliament should reject it because it is alleged to contain unfair provisions in certain clauses, and the matters which have been described by the noble Viscount could, I am quite sure, be adjusted in Committee if the case he has made for them is found to be a sound one. I will return in a minute to his plea for the herbalists, but I will first say a word or two as one who has had this subject before him a long time before even the Minister of Health.
The accusation of haste which the noble Viscount has made is entirely unsupported by the history of the case. This topic in one form or another has been before Parliament for a very long time. I well remember the unanimity that was expressed in 1914, as to the desirability of embodying in legislation the major provisions of this Bill. Therefore, there is no question of haste about it. It is rather long-deferred legislation upon an urgent matter. Except for the special case which the noble Viscount has pleaded for, the main purposes of the Bill are twofold, and they have been long wished for, apart from any professional interest, by sensible people. It is undesirable in the public interest to mislead people who are suffering from some ailment or other to think that if they are suffering, say, from Bright'?, disease, such and such an advertised remedy will cure them, whereas we know of course that unfortunately it will not. It is fair to say that millions of people have wasted their hopes and their money year in and year out in buying things which they vainly thought would cure them of disease and have suffered much in purse and mind in consequence.
Everybody has been agreed, I think, for a long time past that it is desirable to promote legislation to put an end to that sort of imposture, because it is imposture. 'That is the plain word for it. It has long been recognised as desirable that at all events the main constituents of these remedies that are advertised should be made known. A person who buys So-and-so's liver mixture is just as much entitled to know what he is buying under 952 the mysterious name on the label as a person who buys a pound of margarine is entitled to know what he is buying. I well remember some years ago reading a sensational book with the title of Secret Remedies which gave an analysis of a large number of publicly advertised nostrums. It showed that people were paying large prices for hair restorers and such like things when the market value of the constituents could be expressed in terms of decimal points of a farthing. It is quite right that the public should know what they are buying and everybody has been agreed for a long time that that is only fair and reasonable. Those are the two main purposes of this Bill. Therefore I think it a great pity that we should be asked to forfeit the provisions for which people of all ranks and parties have been asking for a long time, simply because the noble Viscount would persuade us that the Bill is unfair in some respects to a certain section of traders.
Do not let us forget the major issue because of some relatively small grievance, because that is what it is compared with the vast public interest concerned. I will leave an abler advocate than myself to reply to the noble Viscount. I have received, like most others of your Lordships, volumes of papers about this Bill, and I have done my best as far as time has been available to wade through them. I am not quite sure that the noble Viscount has not been over-persuaded, because the Bill will not, as far as I can see, do the dreadful things to herbalists that he suggests. They will be able to carry on their business. The noble Viscount shakes his head, but there is no prohibition in the Bill on a herbalist seeing a person who comes to him and wants advice. There is nothing in the Bill to prevent that. People can go to a herbalist and receive advice, and if so wishful can obtain whatever he prescribes for them. That can go on without any interruption, and my statement is in no way affected because the noble Viscount shakes his head. So far as the provisions of the Bill are concerned it does not make any difference at all to that. These people can continue to supply medicines as before, without any change whatever so far as this Bill is concerned. If a herbalist sells some ready-made mixture which is alleged to be a treatment for some ailment, he will have to put a label on the bottle saying what 953 is in it, just the same as anybody else. I do not think that there is anything wrong about that. It seems to me perfectly reasonable.
So far as a description of the contents is concerned, I think the noble Viscount has allowed himself to be over-persuaded. Everybody knows that the active principles of things like gentian are very difficult to subject to organic analysis, and even if the formula were set out on a label, nobody except the experts would be any the wiser, but it would be quite sufficient to make the truthful statement that the bottle contained extract of gentian. That would be enough, and that would be a true statement. So far as that is concerned the condition is not altered. The only difference the Bill makes to the herbalist that I can see, apart from Clause 9, is that if he sells proprietary things like liver pills, he will have to say what is in them. I do not see why he should not do that like everybody else. The only provision which might in any way limit the legitimate operations of herbalists in a way is in Clause 9, and I am advised that it will not. I will, however, leave it to the noble and learned Viscount the Lord Chancellor to reply to that point. Even if that does go beyond the manifest intention of the Bill, surely the proper thing would be to adopt appropriate Amendments if required in Committee rather than destroy the whole Bill for a technicality of that kind. So far as I can see the herbalist would be entitled to carry on, subject to the general provision I have mentioned, without any hardship.
The Bill does seem to leave a number of loopholes which may be difficult to stop up, but I understand that it is the result of a long series of consultations and represents an agreed scheme. Therefore I should hesitate to say anything to upset it. The matter has been the subject of discussion for at least twenty years, and it is high time some settlement was reached. The major purpose of the Bill has been asked for in the public interest for a long time, and I am very glad that it has been introduced by the Government. I hope your Lordships will give it a Second Reading.
§ LORD HORDER
My Lords, my interest in this matter is such that I have taken pains to follow the progress of this 954 Bill through another place, and as a result I take the view of the noble Lord, Lord Addison. I agree that legislation in this matter is overdue. I do not agree with the noble Viscount that because we are at war we should not seize an opportunity to do something in the interest of public health if and when opportunity serves. It is a slogan of mine: "Why not now?" War accelerates a good many efforts concerning which in peace-time our tempo is much too slow. Now I am fully aware that the Bill does not take us very far along the road that many of us would like to travel, and I share to some extent the noble Viscount's view that a great deal of time was not given to the discussion of some of the issues involved in this matter. But I cannot help bearing in mind that experience of former efforts, to which Lord Addison has referred, when so much time was given to the discussion that the Bill was talked out and nothing was done. It may be, therefore, that circumstances—I will be frank—have played into our hands, and have so arranged things that at long last we have got something done.
Now I am not elated by the knowledge that a good deal of give and take, a good deal of compromise, has gone on behind closed doors in regard to various interested parties. That may be, that sometimes is, of service in initiating legislation, but of course Parliament alone and full and open discussion are the only means by which legislation of a successful kind can possibly be achieved. The Third Reading of this Bill did go through another place in a spirit of great cordiality amongst all concerned; bouquets were handed about and if I, like your Lordships, were not aware that as much ingenuity could be displayed in upsetting the original intent of a Bill as can be displayed in implementing it, I would feel more hopeful, perhaps, than I do. But we have two important principles established in this Bill. First there is the principle of disclosure—qualitative disclosure and quantitative disclosure. Originally the Bill specified qualitative disclosure but my right honourable friend the Minister of Health, very wisely, I think, accepted an Amendment by which the ingredients of proprietary medicines were to be disclosed quantitatively as well as qualitatively. I do not propose to accept the invitation of my noble friend Lord Addison to deal with herbalism. That 955 would take me and your Lordships much too far afield. But I cannot help feeling that it is on this quantitative demand in connection with disclosure that our herbalist friends have really struck. I listened attentively to the speech of the noble Viscount, Lord Plumer, and I think I am right in suggesting that.
I am not going to say in your Lordships' House whether I should regard it as a tragedy or otherwise if herbalists went out of business. I am a quiet, peaceful citizen living in a free country, and there are so few free countries left that I should be the last to do anything to prevent this country of ours being the last free one. Therefore, as there are a number of people whose faith in a remedy seems to be proportionate to the number of its ingredients and the complexity with which they are compounded, as I say, in a free country, they must be allowed to take the medicines which they prefer. The noble Viscount suggested that there are some medicines in which he is interested concerning which there would be a technical difficulty in this disclosure. Well, obviously, the technical difficulty is not on the qualitative side. If it is on the quantitative side and the amount of the ingredient cannot be assayed, then I have no doubt that those who see that the provisions of this Bill are properly followed would not mind it being stated that "of such and such an ingredient there is a trace." It might even be said, "there is a smell but it is not enough to be estimated chemically." That, I take it, will not shake the faith of the citizens to whom I have just referred, but it may shake the faith of some people, and I am not certain that that would be bad for them or for the common health.
Consider, my Lords, that the art and science of healing advance, as we all know, very slowly—but they do advance, and in what direction has the advance been in this question of chemical remedies? Has not the advance—I yield to the noble Viscount about the antiquity of his particular form of medication—been in the direction of searching out what is the essential ingredient that does good in the various plants and minerals which nature has provided? What have the advances been in the treatment of disease during the last decade in this country if they have not been in the direction of 956 exact formulation of essential ingredients? May I instance vitamins, which now, as your Lordships know, are capable of being synthesized, produced in tons for human use, whereas ten years ago one gramme of a particular vitamin, very costly, insured for a very large amount of money, was exhibited in New York at one of the health exhibitions, it being the crystallized product at long last isolated from a mass of vegetable and mineral materials. So that I see no hardship in this Bill in respect of any reasonable person who wishes directly or indirectly to advance the art of medication.
The second great principle which this Bill establishes, not for the first time, but more extensively, is control over advertisement. As your Lordships know, in respect of cancer and venereal disease, that has already been done, and, as we have heard from the noble and learned Lord Chancellor, those two diseases are now added to, insufficiently, as many of us would think, but it is a beginning. I brought the very important matter of advertisements of quack remedies before your Lordships' House three years ago, and there was a form of advertisement which I dealt with on that occasion which is not touched by this Bill. I pointed out that the subtle dangerous advertisement in respect of the public health was not the remedy advertisement for a specific disease, but that of remedies, sometimes of quite trivial significance, where the remedy may be harmless, but the advertisement is highly dangerous: the fear advertisement. At that time the Government were running a fitness campaign. I pointed out the incongruity of spending a large sum of money on trying to get the nation health-conscious and at the same time tolerating an enormous propaganda which had the effect of suggesting that we were all of us more or less diseased unless we swallowed, this, that, or the other thing. Now to-day we are faced with this national struggle for existence. We are all of us, as we hope, trying to be efficient in order to pull our weight, and there comes this subtle suggestion that we cannot be efficient, we cannot pull our weight, unless again we swallow this, that, or the other thing. So that there is a crying need still for more control over a form of advertisement which is not dealt with in the present Bill.
957 Finally, to what extent the Bill will really conduce to the common health can only be told after a few years' operation of the Bill. As it is, however, I have my right honourable friend's personal assurance that the Government are prepared to direct an inquiry into the working of the Bill after a reasonable time has elapsed. In addition to this, the Minister of Health on the Second Reading described the Bill as "the first legislative step for a generation on the road to reform," and he added, "It is as the first step to reform that I ask the House to give the Bill a Second Reading." Lastly in Committee the Minister said that with regard to the future, we shall have to see how this Act works out, and in the light of that see what other steps are required for the public health. If we take all these assurances together we may surely regard them as a pledge on the part of His Majesty's Government to make at least a full survey of the whole position in the near future. For the reasons that I think this Bill is a step in the right direction and will conduce to the common health, I hope your Lordships will facilitate its Second Reading.
§ LORD JESSEL
My Lords, in common with many other members of this House, I have received a good deal of literature about the Bill, especially from the herbalists. I quite appreciate what has been said by the noble Viscount who moved this Amendment on behalf of the herbalists, and I think they are to be congratulated on having so doughty a champion to voice their views. The noble Viscount is to be congratulated upon his maiden speech in this House. But I do not altogether agree with his argument that because of grievances, which may or may not be put right later in the Bill, this Bill should be rejected to-day. You may be quite certain that when there is an agitation of this kind there is some foundation for it, and I have no doubt that later on in another stage these grievances may be put right. The noble Viscount said there had been undue haste. But there has not been undue haste because as long ago as 1936 a Select Committee of the House of Commons was set up to consider the question of the Medicine Stamp Duties, and three main conclusions and recommendations were put forward by that Committee. First of all, they recommended that the Medicine Stamp Duties 958 should be repealed; secondly, that in their place there should be a simpler tax, and that the rate of this tax should be lowered, particularly on the lower classes of medicines; thirdly, that a wider range of articles than mere medicines should be taxed, including toilet articles, lipstick, and that sort of things. Most of these articles, as the Lord Chancellor pointed out, would come into that category by reason of the Purchase Tax.
As regards the Bill itself, it has been a very vexed measure for a great many years. I am informed that all the great bodies interested in the trade have agreed on this matter. I might remind your Lordships that these bodies consist of the Proprietary Association of Great Britain—those are the manufacturers of proprietary medicines—the Pharmaceutical Society, that is, the professional society of chemists; and the National Pharmaceutical Union, which is the chemists' protection society. In addition to that, there is the Wholesale Drug Association. These bodies are agreed on the matter, and agreement has also been submitted to the grocers and to the Co-operative Societies, both of whom have business interests in the sale of medicines. They also have agreed, and I am given to understand that it was only when those numerous bodies had been consulted and had agreed that the Government were satisfied that there was some chance of passing this measure. There is no doubt that it is in the interests of the public that a measure of this kind should be passed. Therefore I hope that the Amendment of the noble Viscount will be rejected, and that, if there is any further question of injury to the herbalists, it will be considered at a later stage in the proceedings. I hope that your Lordships will reject the Amendment and agree to the Second Reading.
§ LORD MOYNE
My Lords, I have nothing to say at this stage on the merits of this measure, but I should like to make a suggestion in connection with business. The speech of the noble Viscount raised matters which it should be possible to adjust in Committee, and I think it is reasonable that he should have time to put down the Amendments which he seeks in order to deal with the points he has raised in connection with the practice of herbalism. Unfortunately we are getting very close to the adjournment, and 959 we can arrange the necessary time, consistently with getting the Bill passed before the adjournment, which is for various reasons very necessary, only if we take the Bill through all its stages on the first sitting day after August 3. That will enable the noble Viscount to have time to circulate his Amendments, and it will allow an opportunity of any Amendments that we pass being agreed with another place. I therefore suggest that the noble Viscount may see his way to withdraw his Amendment, amounting to a rejection of the Bill, which is on the Paper, and that we should proceed to the discussion on Second Reading, taking the noble Viscount's Amendments in Committee on the first sitting day after August 3. As there is a heavy agenda for that day it will be necessary to meet at an earlier hour. I suggest that noble Lords should as far as possible avoid engagements elsewhere so as to ensure an adequate attendance.
§ Amendment, by leave, withdrawn.
§ THE MARQUESS OF SALISBURY
My Lords, perhaps you will allow me to say that, notwithstanding the fact that the Amendment has been withdrawn I think we owe a considerable debt of gratitude to my noble friend for having enlightened us to a great extent upon this very intricate subject. My noble friend the Leader of the House has just pointed out how short is the time which remains to us to discuss this Bill. Why is the time so short? I wonder why His Majesty's Government have not seen their way to introduce this Bill a long time ago. According to the noble Lord who leads the Opposition, this is a matter which has been intimately associated with Parliamentary discussion and reflection for many years. Why was this Bill postponed until the very end of this Session? I am quite sure that my noble friend the Leader of the House will not think that I am criticising him in particular, but it does illustrate how very difficult it is for your Lordships, as for those in another place, to do your duty, by reason of the way in which these measures are projected upon us at such very short notice.
I do not know whether your Lordships have examined this Bill. It is a very elaborate Bill, and it simply bristles with 960 legislation by reference. I think it would require a very great deal of time and some expert knowledge to understand it at all. It contains at the end, of course, that wonderful clause which is supposed to soothe our feelings, and which provides that certain things will be laid before Parliament for a certain number of days, so that Parliament may retain control over what is done. In a very considerable Parliamentary life, I have seen that clause appear in Bills over and over again, but I do not remember a single case in the whole of my experience when any use has been made of it, after it has been passed into law. These soothing methods of getting legislation through are a great pity. I am not calling into question the value of this Bill, which I suspect is very much required, but I am venturing to criticise, with very great respect, the way in which this Bill has been put off until the very end of July, before being brought before your Lordships' House. I venture to hope, notwithstanding the shortness of the time available, that my noble friend's Amendments will receive due consideration from the Government.
I do not want to go back to the discussion of herbalism, but I think that the herbalists are certainly entitled to justice in these matters, and their views ought to be considered. I venture with very great respect to say to the noble and learned Viscount on the Woolsack, that if he will devote his mind to this subject I think that he will be convinced that the Bill does require amendment if justice is to be done to the herbalists. If, notwithstanding the great pressure on the Government and the very short time that has been left for it, something by way of remedy can be provided, I think the noble Viscount, Lord Plumer, will feel that he has not wasted his own time—or your Lordships' time, which is very much more important—by bringing this matter forward.
§ VISCOUNT MAUGHAM
My Lords, I have long been interested in this subject, which, as noble Lords have already pointed out, is by no means a new one, and I am desirous of occupying a few minutes of your Lordships' time in making some suggestions in relation to the Bill and to the way in which it is perhaps capable of amendment at a later stage. It seems to me that in a case of this kind there are difficulties in putting down Amendments to the measure to be discussed 961 only in Committee, because the Government are aware of many points in relation to the measure and to the difficulties which are presented by any Amendment which cannot be within the cognisance of those who are not behind the scenes. The measure, to my mind, is one of a most important character, and I will say at once that I support it with my whole heart. I cannot myself conceive of any meaner way of earning money than that of selling worthless remedies to unfortunate people who are suffering from any disease or serious ailment. Anything that stops that, and stops it as soon as possible, should be undertaken, notwithstanding the war in which we are engaged, or the worst efforts of Herr Hitler.
It is possible that certain points taken on behalf of the herbalists are in fact ill-founded. I regret that the noble Viscount seems for the moment to have disappeared before I was in a position to tell him some things which, I think, he should consider before attempting to amend the Bill. In the first place, apart from certain points I need not mention, such as the suggestion that the vexed question of contraceptives should be included, his main point was on Clause 8. There, he suggested, that herbalists are being very badly treated because of a difficulty in complying with the statement in reference to the quantitative particulars contained in any particular medicine. As I read the present Bill, that is really a misapprehension. As at present advised, even though there be some plant used in a herbalist's remedy which does not enable the exact quantitative particulars to be stated, that is met by the provisions of subsection (2) (a) (iii) of Clause 8. Under that provision, where the constituent is not a poison and is not so described, "the accepted scientific name or other name descriptive of the true nature of the substance or constituent" can be given. In other words, you could mention the plant dandelion, and you might say that only a very small proportion resulting in nothing more than a trace of the chemical constituent of dandelion was used. I think that would be sufficient, because there are no doubt cases where nothing more than a trace of a particular substance is really contained in the remedy, a particular substance which is the healing part, or supposed to be the healing part, of some particular 962 plant employed by herbalists. If I am wrong in that, the matter is capable of a slight Amendment on the Committee stage which would prevent any real complaint by the herbalists based on the view that the whole of their business is being destroyed by this Bill.
On the other hand, as I read the Bill, it is a complete mistake to suppose, as I rather think the noble Viscount supposed he had been told in another place, that the business of herbalists was in no way affected by the Bill. As I read it, it was not the intention of the framers of this measure, and is not now the meaning of those who support it, that herbalists should be entitled, because they call themselves herbalists, to sell things which are medicines in competition with chemists without being put under the same restrictions as chemists, and without affording to the public the information which is specified in the Bill as it now stands. In other words, in so far as they are selling medicines, they are to be in no better position than other people who sell them.
That leads me to a point which I suggest the Government might consider. For my part, when I read a Bill of this kind, the first thing I look at is the definition clause, because in a modern Bill nearly everything depends on definition. The definition here that confuses me to some extent, and makes it difficult for me to know to what the measure extends, is that on Page 13 under the words "Substance recommended as a medicine." I can pass by (a), (b) and (c). The material part to which I wish to call attention is the part about line 30 in which an advertisement is—in terms which are calculated to lead to the use of the substance for the prevention or treatment of any ailment, infirmity or injury affecting the human body,not being terms which show it is for food. How is the Pharmaceutical Society to determine what is precisely within the words "ailment, infirmity or injury affecting the human body"? It is quite clear that most toilet preparations are not intended to be within these terms. People may, I suppose, sell lipstick, which I believe is much used in this country, without being subject to the terms of this Bill. I suppose it is intended that face creams are also excluded, but there are many things which are used for the face, and which are alleged to prevent ailments such as, for 963 instance, the ailment, which may be very serious, resulting from sunburn. I need not mention other things because it is obvious there are many things which are not intended to come within the Bill, but which are probably within these words.
Do not let it be supposed that I am criticising the draftsman in any way, because I believe it to be impossible exactly to say what particular alleged remedies for some trifling matter affecting the face or skin or something of that sort is intended to be within the Bill, and what is not. I think—and here I am a prophet—that if the Bill rests as it is, great difficulty will be occasioned in regard to many articles which are on the border line between articles which are alleged to be remedies for the prevention of ailments or something of that kind and those things which are not intended to be touched at all. The method of avoiding the difficulty, or palliating it, which I suggest for the attention of the Government is that there should be a clause which will enable a suitable body, from time to time, to state that such and such things are not to be treated as substances recommended as medicine within the meaning of Clause 14. In other words, that you should remove from the minds of certain people the very serious fear which they may entertain as to whether the measure hits them or not.
For my part, I do not know whether some fruit salts are within this or not. Any number of people use fruit salts. Are they remedies which are intended to prevent some ailment? They are intended to serve purposes of health, but they are also intended in man cases to prevent a species of inconvenience in the human frame which may well amount to an ailment. I do not think people ought to be subjected to any doubt on a subject of that sort, although I do not believe it is possible to have a perfectly complete statement of what are substances recommended as medicines and what are not. At the same time I think it would be very easy to enable a suitable body to remove any doubt upon that by saying we are not intending by this to include various things. I am not quite sure that an ordinary zinc ointment which is to be found in almost every household is within the measure or not. There may be other 964 things of that sort which are such well-known household remedies that I do not believe they are intended to be within this measure at all. May I mention another household remedy, arnica? I do not know whether it is included and perhaps I may say with all humility that if I do not know there may be people who sell these things, especially in country places in one of those charming shops where everything is sold, who do not know either.
In relation to that matter I would venture to say that I hope somebody with much more knowledge of medical matters than I can pretend to have will be able to suggest some moderate additions to the list of diseases which are mentioned in Clause 5. The very interesting speech which we had from my noble friend Lord Horder leads me to suppose that he would find no difficulty at all in adding some names to the list of diseases there to be found which nobody would think differ in substance so far as regards the necessity for the prohibition of advertisements relating to them, and which ought to be added to subsection (1). As I have said I know very little, fortunately for me, about these things, but cataract and glaucoma are not the only diseases to which the human eye is subject. Why should persons be able to advertise, for instance, an unfailing remedy for conjunctivitis? I do not know why glaucoma is in this list. If it is properly there, why is not conjunctivitis also? I hesitate to make suggestions, but I hope those I have made will be considered by the people who are really able to consider them with a knowledge that I do not pretend to have. Those are suggestions which I hope and think somebody may consider before the next stage of this Bill, and I only wish to repeat that there can be few measures of this nature which have been before this House that are more deserving of a Second Reading.
§ LORD TEVIOT
My Lords, I want to detain your Lordships for one moment in order to ask my noble and learned friend on the Woolsack a question that is perturbing the minds of a great many small shopkeepers all over the country in regard to this Bill. This is the question they are asking me—whether, as in the past, they will be permitted under this Bill to sell such remedies as Veno's Cough 965 Mixture, Beecham's Pills and the like? As far as I can see it appears from the Bill that Clause 7 is the only clause that deals with this matter. It is feared that the multiple stores will have an advantage over the small trader in this way, that they might have a certified chemist in one branch and consequently would be able to sell almost anything of this nature throughout the country. I shall be glad if my noble and learned friend would answer that question at this stage.
§ THE LORD CHANCELLOR
My Lords, in reply to my noble friend who has just sat down, I think the matter becomes clear if you look at page 10 of the Bill, subsection (5) of Clause 9. There my noble friend will see that if a sale is effected in a shop it does not in the least matter if the shop is a small or big one, or whether it is in the country or anywhere else, and the article was sold under a proprietary designation, which is certain to be the case in the two examples he gave, if the provisions in paragraphs (a), (b) or (c) are satisfied, then the sale can go on as before. The difference will be that the people who buy these remedies with the proprietary name will have the opportunity of looking at the label and seeing what the remedies are really made of. That, as far as I can see at the moment, is the only reason why there should be any difference in the amount of the sales of any of these remedies. That, I think, is the answer to ray noble friend.
As regards the rest of the debate we are indeed all of us grateful to the noble Viscount, Lord Plumer, for the way in which he brought forward the matters that he described to us. Nothing could have been done with greater plainness or to the better service of the House, and I hope I may be allowed respectfully to thank him. I think it will be found on examination that the fears which he expressed are genuinely and really met by the Bill, and I certainly am not making any admission to the contrary. Whatever may be said of the speed with which this matter comes before us, this particular question of how herbalists stand under this Bill has been drummed into a great many people's ears, and forced into their post boxes, quite rightly, for some time past. My recollection of the documents on the subject is that they are quite mountainous. I agree with my 966 noble friend that the legal opinions which he read to the House are rather remarkable opinions. As to the strength of their language there is this to be said, that when a Government Bill has been expounded in the other House by the Attorney-General, to suggest that his view of it would meet with contempt in any Court of Law, or that the meaning of another clause has been explained from profound ignorance, is at all events a remarkable opinion. I hope when the time comes to make a modest contribution humbly to explain why perhaps the views of some people may be right. But that is quite without prejudice to what is the intention of all of us—namely, to see whether an Amendment is required, and, if an Amendment is required, to make it. That, I think, would be the right attitude to take now.
I must not sit down without observing that all of your Lordships will, I am sure, want to reflect upon this matter, and upon the speech made by the noble Lord, Lord Horder. The truth is that this is an extremely difficult subject which has again and again found itself up against the obstacle of conflicting interests. If I may say so, with great respect to the noble Marquess, I think perhaps one reason why the Bill was not introduced earlier in the Session in another place was that those conflicting interests were still conflicting, and it was a very considerable achievement to find a method which would serve the public interest and which, none the less, would not arouse opposition from all sorts of quarters. For my part, I take the view that this sort of Bill is very much overdue. I examined the Medicines Stamp Acts when I was Chancellor of the Exchequer and I was completely convinced that they ought to be swept out of existence. I must confess that I tried to do it in one of my Budgets, but the attempt was a failure. The reason it was a failure was not perhaps because of those members who from time to time thought it a bad idea, but because every member of Parliament was assailed by this or that body, and by many of his constituents, who pointed out various objections.
It is a very considerable achievement to have got the Bill together at all, and I think, as my noble friend Lord Horder said, it is going in the direction of reform on two or three matters where reform is very much overdue. It remains to be seen whether in doing that there is any 967 sort of injustice to herbalists, and I would never be a party to a deliberate piece of injustice of that kind. But I do not think that the herbalists will suffer except in this sense, that they will have to put upon a label what kind of stuff a remedy is made of, and I cannot see any particular reason why they should not do so, for after all the people who make the stuff know what they put in it. I trust that when we come to the Committee stage agreement will be reached.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.