§ 2.44 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Amherst of Hackney.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair]
§ Clauses 1 to 3 agreed to.
§ Clause 4:
§ Lists of bodies corporate carrying on business as opticians
§
(2) A body corporate shall be entitled to be enrolled in the appropriate list—
(c) if it satisfies the Council that the greater part of its business consists of activities other than the testing of sight and the fitting and supply of optical appliances and that so much of its business as consists of the testing of sight is carried on under the management of a registered ophthalmic optician and that so much thereof as consists of the fitting and supply of optical appliances is carried on under the management of a registered optician; or
§ LORD SHEPHERD moved, in subsection (2), to leave out paragraph (c). The noble Lord said: I will try to speak with the greatest care and responsibility in moving this important Amendment. I am very conscious that if I succeeded in gaining the support of your Lordships for my Amendment, and if the noble Lord, Lord Amherst of Hackney, were to move a more restrictive Amendment on the Report stage of this Bill, my 553 possible success might have dire consequences to this Bill, for it would then have to be sent back to another place for approval of the Amendment. With the pressure on Parliamentary time this Bill, which has many great merits, might then well be lost, and I believe that that is the last thing that we should wish to happen. I will therefore, with your Lordships' permission, move my Amendment, and after receiving, as I hope, the necessary assurances from the noble Lord, Lord Amherst of Hackney, and the Government. I will then, by leave of the House, withdraw it. I may say that I have informed the noble Lord who speaks for the Government on this matter of my objections to this particular subsection. I regret that it was only at the last moment that I was able to inform the noble Lord who is promoting this Bill in your Lordships' House of those objections.
§ The reason for moving my Amendment is that I fear that paragraph (c), as it is now framed might create circumstances which I do not believe were intended by the promoters of this Bill. Paragraph (c) was inserted in the Bill in another place as a result of an Amendment moved on Report stage on April 18 by Mr. Russell, who I am sure we should all wish to congratulate on introducing such a complicated Bill as this. I think it is right and proper to point out that the principle underlying this paragraph is quite contrary to the Crook Report, which is the basis of the Bill. I should like to take this opportunity of joining other noble Lords who on the Second Reading of the Bill paid their tribute to my noble friend Lord Crook and his Committee for their great service in producing a Report which is clear and understandable to all.
§
I should like to read paragraph 96 of their Report, which deals with "bodies corporate concerned solely with the supply of glasses." They say:
We feel, however, that as in the case of ophthalmic optical companies, legislation should provide that—
I personally have no complaint that the promoters of the Bill departed from that principle. It was felt that reputable
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stores who have operated optical departments properly and successfully in the past should not be debarred from continuing their business or from extending their service by opening other departments in the future. Before this paragraph was inserted the Bill would have debarred these stores from enrolling their branches in the appropriate lists.
§
I should like now to refer your Lordships to the speech made by Mr. Russell in moving his Amendment. I quote from the OFFICIAL REPORT, Commons, of April 18 [Vol. 586 (No. 91), col. 540]:
The Bill in its present form might create difficulties for firms or societies which are formed in future and whose main business is not that of opticians but something quite different. It was never intended to prevent such societies or bodies from being enrolled subject to the required conditions.
In answer to a query raised by another Member of another place, Mr. Russell further stated (col. 542):
I think I can give him the assurance that the number of cases which will arise of this will be comparatively small. It is, I agree, a slight departure from the Crook Report in that respect. It is really to cover, in the case of bodies corporate, not co-operative societies, a large store, for example, which might open a branch in another city under another name.
I think that it is clear from these last few words that the intention of the promoters was that this paragraph (c) should cover a comparatively small number of companies. However, the insertion of this provision has caused considerable concern amongst opticians, both dispensing and sight-testing, and equally, I would submit, it would give concern to those reputable stores who provide optical services.
§ The concern arises from the fact that this paragraph is framed in such a way as to enable limited companies, large or small, to claim enrolment even if they have no interest in, or previous experience of, optics and even though the optical practice forms an insignificant part of their trade. It is possible that companies who trade in cycle accessories, butchers, teashops and the like might open an optical department. I am sure that that never was the intention of the promoters and that the noble Lord, Lord Amherst of Hackney, will confirm this.
§ Further, paragraph (c) makes it possible for disreputable firms, who may see an opportunity to make quick profits 555 by selling shoddy goods to the public, to secure the status and protection given by this Bill merely by ensuring that they employ a registered optician. Let us face it: a professional person need not have the highest integrity. We have had a recent case which shows that even Harley Street has its black sheep. I maintain that the paragraph, as it is now framed, while safeguarding the existence and interests of reputable and established stores, also makes it possible for disreputable companies to engage in the optical business. It seems to me regrettable that, while individual opticians and bodies corporate, whose business is solely concerned with the supply of optical goods and sight-testing, should all be subject to the rigid supervision and control detailed in paragraph (a), paragraph (c) provides a loophole by which unscrupulous organisations could profit, to the disadvantage of the public and of the reputable dispensing ophthalmic opticians.
§
I have spoken generally on the clause and subsection and I should like to ask the noble Lord, Lord Amherst of Hackney, one detailed question. I would refer him to the words in paragraph (c)
under the management of a registered ophthalmic optician ",
and, later:
under the management of a registered optician".
I would ask the noble Lord: what is the promoters' interpretation of the word management"? My interpretation is that it means a general control, particularly over policy. In paragraph (a) a body corporate must have a majority of its directors registered opticians. In that case, we can say that management, including policy, is under the control of registered opticians. But under paragraph (c) a company whose business consists of activities other than the testing of sight and supply of optical appliances would surely be controlled and managed by individuals who have no optical experience. I cannot see how a registered optician who is an employee of a company—I stress the word "employee"—can be held responsible for the management and policy of the optical department. I should be grateful if the noble Lord could give me that definition. As I have said, I shall be prepared to withdraw my Amendment if I receive an
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assurance from the noble Lord and from the Government, who, of course, will be responsible for the implementing of the Bill once it is passed, that, should the operation of this paragraph prove that optical practice is being abused because of the wide drafting of the clause, then the Government and the General Optical Council will not hesitate to come to Parliament to have this clause re-written in a more restricted form. I beg to move.
§
Amendment moved—
Page 3, line 34, leave out paragraph (c).—(Lord Shepherd.)
§ 2.58 p.m.
§ LORD AMHERST OF HACKNEYI should like to thank the noble Lord for the reasonable way in which he has moved this Amendment, which is an important one. As the noble Lord, Lord Shepherd, says, paragraph (c) departs from the original proposals of the Crook Report, which envisaged that there would not be any new firms setting up in the optical industry. But, of course, the Bill does not go nearly so far as that, and I think the noble Lord will agree that the Crook Committee, in making their recommendation did not base it on the ground that there was any evidence of great abuse at the moment. This paragraph (c) was inserted on Report stage in another place, for two main reasons—namely, that it was proper and customary for a store to offer the services of an optician; and secondly that arrangements which are sometimes made for the optical department to be sub-contracted to firms of opticians do not always work. Therefore, it was felt that stores should have power to have an optical department. The question really is: are the provisions in paragraph (c) sufficient to ensure that there is no abuse of this practice?
I think that the question turns on the important point of management raised by the noble Lord, Lord Shepherd. An optical department must be "under the management of a registered ophthalmic optician," or, in the case of dispensing opticians, "under the management of a registered optician." In our view, "under the management of" means that the registered optician must be effectively in charge, and would himself be responsible to the General Optical Council for unethical conduct which was or ought to be within his purview as the manager of the 557 branch of the stores. That being so, he would come under the disciplinary powers of the General Optical Council and he, or the department, could be struck off the register. If they committed certain offences under Clauses 20 and 21, which deal with the testing of sight and the dispensing of glasses by unregistered people, any directors of the firm, if there was any collusion, would all be subject to prosecution under the criminal law and would be liable to a fine, on summary conviction, of £100 and, on conviction on indictment, of £250.
The General Optical Council have powers to make all the regulations, and one hopes that the methods by which they proceed will allow them, in a case where there was the sort of abuse the noble Lord has mentioned, to act with reasonable speed. One cannot really give an assurance as to what a body will do in the future, but if there was the wide. spread abuse which the noble Lord fears, then the Council would, I think, have to ask Parliament to do something about it. I hope that that deals with the main arguments for this paragraph and indicates why I feel that it would not be right for us to delete it, as the noble Lord suggests. It was put in, as I said, at a late stage in another place and received general support on both sides of the House. I hope that the noble Lord may find it possible to withdraw his Amendment.
THE EARL OF ONSLOWOn behalf of Her Majesty's Government, I should like to thank the noble Lord, Lord Shepherd, for the manner in which he presented this Amendment, but I am afraid that we cannot recommend the Committee to accept it. As the noble Lord has already said, we want to get this Bill, and we might lose it if the Amendment was pressed. However, I am in a position to give him an assurance: that the Government will watch this matter carefully and, should there be any abuse such as he foresees, would take steps, as and when it arose, to deal with it. I hope that will satisfy the noble Lord.
§ LORD SHEPHERDThe purpose of moving the Amendment has, I think, been achieved by the assurance I have received from the noble Earl, Lord Onslow. As I have said, there might possibly he abuses, but in view of the assurance I have received from the noble Earl and 558 from the noble Lord, Lord Amherst of Hackney, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clauses 5 to 10 agreed to.
§ Clause 11:
§ Erasure from the register and list for crime, infamous conduct, etc.
§ (4) If it appears to the Disciplinary Committee that—
- (a) a registered optician or enrolled body corporate is engaged in the fitting and supply of optical appliances and
- (b) that the arrangements made by the optician or body corporate for carrying on his practice or his or its business are not such as to secure that the fitting and supply of optical appliances in the course of that practice or business are carried out by, or under the supervision of, an ophthalmic optician registered in the register of ophthalmic opticians engaged or proposing to engage both in the testing of sight and in the fitting and supply of optical appliances or a registered dispensing optician,
§ 3.7 p.m.
§ LORD LUCAS OF CHILWORTH moved, in subsection (4) (b), to leave out "supervision" and insert "direction". The noble Lord said: In moving this Amendment I would assure the noble Lord in charge of the Bill that I am wholly in favour of the Bill in what it purports to do. But I want to refer to a different aspect of what I would term, with great respect, muddled thinking from that expounded by my noble friend Lord Shepherd. To save your Lordships' time, might I also speak to the only other Amendment in my name on the Martialled List, which is to Clause 21, because the principle is the same.
§
Clause 11 says:
If it appears … that
My noble friend Lord Shepherd has questioned whether a department in a general store could be carried on "under the management of". In Clause 11 the whole operation is to be carried on "under the supervision of". Under this clause the Disciplinary Committee can take action and erase the name of the individual or the concern from the register unless all these acts of testing, fitting, sale and supply are carried on "under the supervision of an opthalmic optician". In Clause 21, to which I also have this Amendment down, the sale cannot take place unless it is "under the supervision of a registered medical practitioner or … optician"; otherwise a fine of anything from £100 to £250 may be incurred.
§ What is meant by "supervision"? The literal interpretation of "supervision" is to supervise, to overlook, to oversee; and the learned advice that I have received tells me it means that the registered optician must be in physical and personal attendance while all these operations of fitting, adjusting, supplying and selling are being carried out. I am sure that the noble Lord and the promoters of the Bill do not mean that. The same expression is used in the Pharmacy Act, and I am informed that it has been enforced in law. That is why the dispensing chemist cannot dispense medicine in another room or in another department which has a physical obstruction. The dispensing of medicine, and the testing of eyes and eyesight and the fitting of glasses and frames, is a little different. I feel that neither the noble Lord nor I would like to undergo an eyesight test or an adjustment to our glasses, and have the registered ophthalmic practitioner dashing backwards and forwards to supervise the making out of the invoice, or the tinkling up of the cash on a cash register. But that is literally what this means in both these clauses.
§ The noble Lord, who is blessed with good eyesight, does not have to wear glasses—I see that he has some, but he keeps them well disguised. If he went to an ophthalmic optician, had all his tests and obtained his glasses, and then went back to have the side pieces adjusted because the glasses slipped down his nose, 560 according to the literal interpretation of this clause an auxiliary in that firm could not just bend the loop unless the registered optician was there physically to supervise the doing of it. I am sure the noble Lord does not want that.
§ My noble friend Lord Shepherd has illustrated, if I may say so without offence, the careless draftsmanship of this Bill. Clause 4 says that the business of sight testing must be "under the management of" a registered optician. The management can sit in a room far apart from the operation, and it is legal so to do. This clause uses the words "under the supervision of", the literal interpretation of which is the bodily and physical presence. Just lately we have had quite a number of cases where legislation with which we have been quite satisfied has passed through this House but the High Courts have ruled against our intentions. Two examples are the construction and use of motor vehicles and the delivery of summons by registered post. If the courts take the same view of the word "supervision" in this Bill as they did of it in the Pharmacy Bill, then it means that the process of testing which is quite right—the fitting, the supplementary fiting, the making out of an invoice and the physical sale, must be under the supervision of the registered ophthalmic practitioner.
§ I do not think it is necessary to go as far as that. I think it will be a colossal inconvenience to the public, and I believe the noble Lord's purpose, which I support —I am not trying to quarrel with his purpose—could be achieved by, if I may use the expression, a slightly looser definition. I suggest that it should be "under the direction or control" —and my second thoughts on this matter tend towards the word "control" rather than the word I have in this Amendment, "direction". What the noble Lord really seeks to do is to ensure that the testing and the proper fitting of spectacles and optical aids is carried out under the control or responsibility of a qualified individual. That is what the noble Lord wants, and I agree with him. But he does not mean to say "the supply and sale". Those are the words used. What does he mean by "supply" and "sale"? Technically and legally, the sale of an article takes place only when the bill of sale is made out. Does he want the registered optician standing by the girl 561 who writes out the invoice? That could be the literal interpretation. He does not want that.
§ In one clause, he hits upon—and I think very sensibly— the word, "management". If it is carried on under the management of a reputable man, a registered practitioner, that is what the noble Lord wants. I am not going to press this Amendment this afternoon, but I think it is an important point, and I should like the noble Lord, between now and the next stage of the Bill, to consult his advisers and see whether a better definition, a slightly looser definition, one which will not cause inconvenience to the public but which at the same time safeguards the interests he wants to safeguard, can he thought of.
§ I will not go into a lot of other arguments. I think I have made my point clearly. I do not quarrel with the purpose. I believe the noble Lord may find himself in difficulties later on through a rather too tight supervision, which literally means physically overseeing. He does not want that. It is either "management" or "control" the noble Lord is desirous of having. If he can think of a better phrase than mine, I am perfectly willing to withdraw the Amendment and return to it on the next stage of the Bill, when he has had time for consultations. I beg to move.
§
Amendment moved—
Page 17, line 26, leave out ("supervision") and insert ("direction").—(Lord Lucas of Chilworth.)
§ LORD AMHERST OF HACKNEYAs the noble Lord said, there is little between us here in intention. It is really a question of whether one word is better than another to carry out that intention. As the noble Lord said, "supervision", in a similar context, is used in the Pharmacy and Poisons Act, 1933, and has been the subject of various decisions in the courts which have held it to mean that normally the supervisor must at least be about so as to know what is actually taking place when the sale is in progress: it is not enough for him to do it by remote control from somewhere else on the premises. "Direction", so far as I know, has not been defined, and I am informed that if it were substituted here it might mean a much tighter control, and that each action had to be done under express instructions. It might, on the other hand, require the authority of 562 an optician who was elsewhere, maybe in another branch, or even on holiday. Obviously, the noble Lord's intention is that the action should be controlled or supervised.
The intention of the clause as it is at present drafted is to ensure that the qualified man does not leave unqualified assistants by themselves to fit glasses, and thus to do work for which his training is specially required. As the noble Lord will agree, fitting is an important part of the work and has great influence on the comfort of the wearer and the effective power of the lenses. I am informed that this paragraph, as drafted, is reasonably elastic; that quite a lot of work could be done by unqualified assistants under the optician's supervision. His receptionist can join in advising a patient on the frames or selecting the frames—all that side of it. The requirement applies to the arrangements for the fitting and supply of glasses, not to every detail of each case, provided that the general arrangements are proper ones. Of course in the case of Clause 11 it operates only when the disciplinary committee finds out that there is ground of action, and there has been some form of negligence. Those are my points on the Amendment which the noble Lord moved.
I will not repeat most of them in dealing with the second Amendment in the noble Lord's name. The essential thing here is that it turns on the meaning of the word "selling". "Selling", I am informed, covers the essential processes of sale but would not prevent an unqualified person from handing over, while the optician was away, a package already purchased. So long as there is some supervision by the optician at the time the essential part of the sale is done, the actual handing over apparently could be done when the optician was not there. And it does not cover repairs to glasses. I have tried to show the noble Lord that with the word "supervision" the clause is not quite so rigid as he implied, and that it leaves reasonable latitude for assistants to do various jobs, which I think he wanted them to be able to do, but that it does mean the physical presence of the optician on the premises, which I think "direction" does not necessarily mean. I hope that I have satisfied the noble Lord; but if I have not, I will, of course, have discussions 563 with him between now and another stage of the Bill. In the meantime, I hope that he will find it possible to withdraw his Amendment.
THE EARL OF ONSLOWOn behalf of Her Majesty's Government I, too, am grateful for the way the noble Lord, Lord Lucas of Chilworth, presented this Amendment. I will not weary the House by repeating what the noble Lord, Lord Amherst of Hackney has just said, but I am advised that in his drafting the word "supervision" is really a better word than Lord Lucas of Chilworth's word, "direction". Therefore we hope that, to speed the Bill, the noble Lord will see fit to withdraw his Amendment at this stage.
§ LORD LUCAS OF CHILWORTHWith great respect to both noble Lords, I do not agree with what they have said —I suppose the same adviser has operated in both cases. If I may, with temerity, enter one word of protest, I would say that I am not interested in the argument about speeding the Bill that was used to my noble friend Lord Shepherd. Is your Lordships' House only a rubber stamp? Surely, if your Lordships come to the conclusion that you wish to amend the Bill, it is no sensible argument to say, if your Lordships are to carry out the functions for which this House is in being, that you must not do it because you want to speed the Bill.
If the noble Lord had withdrawn the word "supply" I could have understood it better. But may I tell him that I have been engaged in the selling side of industry for so many years that I am very well versed in the legal terminology of "sale" and "supply". What his advisers have told him is completely wrong. The literal interpretation of both the words, in Clause 11, and in Clause 21, is that in the process of sale there must be a registered ophthalmic practitioner in attendance to supervise it. The literal interpretation of that in the case mentioned by my noble friend Lord Shepherd is that he should be at the side of the girl who types out the invoice on the machine and also when the invoice is literally handed over to the purchaser, because that is when the sale is effected and the supply is effected. The noble Lord does not want that, and neither do I.
564 It is this kind of advice that is put to your Lordships' House, and which your Lordships' House accept, and then the High Court, later on, says "Well that is just a lot of nonsense." I asked the noble Lord. Lord Mancroft, in this House the other day what the Government were going to do to alter the law because, in regard to a recently enacted Bill through your Lordships' House, the Court of Appeal had come to a completely different conclusion from what Parliamentary draftsmen stated in the Bill. So I do ask the noble Lord, for his own sake, to have another look at this point between now and the next stage.
I said that my second thoughts on this matter were that "direction" was not as good a word as "control". "Direction", I quite agree with him, could be as narrowly construed as "supervision". "Control" is something different. This is not a silly point; it is no more silly than the one the noble Lord, Lord Mancroft, mentioned in your Lordships' House yesterday afternoon when he told your Lordships how a local Act effected a divorce between a town clerk and his wife because a provision was slipped into the local Act. The noble Lord does not want, in some months to come, the same rigid application as under the Pharmacy Act, where the dispensing chemist may not have a door—he may have a curtain, but he may not have a door—between the dispensary and the shop. Is it not worth while preventing that by a little tidiness and thought before this Bill gets on to the Statute Book? I do not want to weary your Lordships this afternoon. I will withdraw this Amendment, and I will not move the next one. I will return to this matter on the Report stage of the Bill, because I think it is very important to sec that legislation which we pass through your Lordships' House is as tidy as it is possible for us to make it. With those words, and on the assurance of the noble Lord, if he will give it to me, that he and his advisers will come into contact with me and my advisers to see if we can get a better definition, I ask leave to withdraw the Amendment.
§ LORD AMHERST OF HACKNEYI am certainly very ready to do that, if the noble Lord wishes. I did not use the argument that I was resisting the Amendment on the ground of speeding the Bill. I tried to argue that "supervision" was a better word than "direction".
§ LORD LUCAS OF CHILWORTHMy remarks were not levelled at what the noble Lord said but at what the Government spokeman said.
THE EARL OF ONSLOWI think the noble Lord slightly misinterpreted me. I merely echoed what the noble Lord, Lord Shepherd, said in withdrawing his Amendment, so that the Bill would be speeded; and I hoped the noble Lord would follow the same course as his colleague.
§ Amendment, by leave, withdrawn.
§ Clause 11 agreed to.
§ Clauses 12 to 20 agreed to.
§ Clause 21 [Restriction on sale and supply of optical appliances]:
§ LORD LUCAS OF CHILWORTHOn the undertaking which the noble Lord, Lord Amherst of Hackney, has given, I will not move my second Amendment.
§ Clause 21 agreed to.
§ On Question, Whether Clauses 22 to 31 shall stand part of the Bill?
§ LORD CONESFORDI wish to raise only one point. If the wording of the Bill is going to be looked at again between now and a later stage, it seems to me that, if the words are not too well established in existing legislation, what really deserves consideration is the extraordinary phrase "ophthalmic optician". An optician is one who is versed in optics or the laws of sight. "Ophthalmic" adds that he must be concerned with the eyes. "Ophthalmic optician" seems an extraordinary phrase because it is really scarcely conceivable that any optician should not be concerned with the eyes. Therefore, I think it is worth considering whether what is really meant is not "sight-testing optician".
§ Clauses 22 to 31 agreed to.
§ Remaining clauses and Schedule agreed to.
§ House resumed.
§ LORD AMHERST OF HACKNEYMy Lords, I beg to move that this Report be now received.
§ Moved, That the Report be now received.—(Lord Amherst of Hackney.)
§ LORD LUCAS OF CHILWORTHMy Lords, are we not going to have a separate Report stage?
§ LORD AMHERST OF HACKNEYMy Lords, I withdraw the Motion.
§ Motion, by leave, withdrawn.