§ [No. 1]
§ Leave out Clause 25.
§ The Commons agreed to this Amendment and made the following Amendment to the Bill instead of the words left out:
After Clause 58, Insert the following new Clause:
§ Extension of power of user by Crown of patented invention to user for certain health services.
§ ".—(1) The powers exercisable in relation to a patented invention under section 46 of the Patents Act 1949 by a government department or a person authorised by a government department shall include power to make, use, exercise and vend the invention for the production or supply of drugs and medicines required for the provision of pharmaceutical services, general medical services or general dental services, and prescribed for the per poses of this section by regulations made by the Minister of Health and the Secretary of State acting jointly; and any reference in that section or in section 47 or 48 of the Patents Act 1949 to the services of the Crown shall be construed accordingly.
§ (2) In the foregoing subsection references to pharmaceutical services, general medical services and general dental services shall be construed as referring to services of those respective kinds under Part IV of the National Health Service Act 1946, Part IV of the National Health Service (Scotland) Ac, 1947 or the corresponding provisions of the law in force in Northern Ireland or the Isle of Man.
§ (3) The power conferred by subsection (1) above to make regulations shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
§ (4) This section shall extend to the Isle of Man."
§ The Commons made the following Consequential Amendment to the Bill—
§ [No. 3]
§ Clause 78, page 55, line 31, after ("Act") insert ("except section (Extension of power of user by Crown of patented invention to user for certain health services) thereof.")247
§ BARONESS PHILLIPS
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2, which they have made to the Bill instead of the words left out by the Lords Amendment No. 1. I will not repeat the whole of the arguments, which were put very fully before your Lordships when we discussed the original clause. It will be quite obvious to your Lordships who have studied the Bill that this new clause reinstates in principle Clause 25, which was left out by this House on Report stage, and extends to the general medical, dental and pharmaceutical services the provisions related to Crown use of patented drugs and medicines, which under Section 46 of the Patents Act already apply to the hospital services.
My Lords, I hope I have established the fact that there would never be any sudden or arbitrary use of this power, which is essentially one of last resort. Therefore Her Majesty's Government have tried to find a practical way of reinforcing this assurance and the new clause limits the use of Section 46 for the purposes of the services covered by the clause, to drugs and medicines which have been specified by Regulations. This provision will not only give due warning (and this is a point that was stressed by many noble Lords in earlier debates) should it ever be necessary to invoke these powers, but it will also give Parliament an opportunity of discussing and approving their use in a particular case.
I think I am correct in saying that the Amendment moved by the noble Lord, Lord Newton, sought to do something of this kind: and as I recall he said that he was putting forward Amendments which were a genuine attempt to make it possible for this to be included in the Bill. The concession which has been made by the Minister will, I hope, be seen by your Lordships as evidence of the Government's intention to make use of this power only if we have to, responsibly and with due opportunity for Parliamentary debate.
The clause is one part of a set of proposals which was recently explained to the House and which will beyond dispute provide a moderate and comprehensive settlement which is both fair to the industry and to the taxpayer. It is neccesary for 248 Ministers to have an effective and expeditious power of last resort, because normal competitive conditions do not exist for the supply of drugs to these services, and it is on Ministers that the duty mainly rests to ensure that proper value is obtained for the expenditure of public funds. Bearing in mind the previous debates, this is a concession on the part of the Minister and an attempt to provide a compromise. I hope that your Lordships will accept it in this form.
§ Moved, That the House doth agree with the Commons in the Amendment No. 2 which they have made to the Bill instead of the words left out by the Lords Amendment No. 1.—(Baroness Phillips.)
§ LORD SANDFORD
My Lords, it is really disarming when one has a bone to pick with the Government, to be faced with one of these charming noble Baronesses. I cannot say that we, on this side of the House, welcome even this new clause but it is undoubtedly a considerable improvement on the previous attempts, particularly because of the inclusion of what now stands as subsection (3), which will have the effect of ensuring that this power cannot be used without Parliament's having an opportunity to debate it. This is, of course, an extremely late stage at which to introduce new material, and from what I was just saying I think the House will feel that this particular matter has not been introduced into legislation in a way that is at all satisfactory. If it works—and we hope it will—it will be very much by good luck and certainly not by good management.
§ LORD OGMORE
My Lords, I am grateful to the noble Baroness for the way in which she has tried to persuade us to accept this Amendment by the Commons—the new clause. In this House we rejected Clause 25 on a Motion moved by myself and supported widely on various Benches in this House. It went down to the other place, and they, by only three votes, failed to agree with us. That was very nearly a victory in those circumstances. In this Parliament I do not know when there has been such a close thing as a Government victory with only three votes, and that on a Government measure. That in itself is one indication of the justification that we had for moving 249 our Amendment to leave out Clause 25. Further, the fact that the Government have gone some way—and I think quite an important way—to meet us in the Amendment we are now discussing is another indication that we were right.
The House of Lords is often criticised these days. Not long ago the noble Baroness, Lady Wootton of Abinger, said the House of Lords was a mountain which only prod iced mice. That is completely untrue; very often we produce some very important matters in this House, and this is one of them. This is a case in point. It affects an important, exciting and new industry, and furthermore it affects by implication a large segment of British industry, and I am grateful to the Government for meeting us in the way they have. Like the noble Lord, Lord Sandford, I would not say that I am entirely satisfied. I am not. It would be better to leave out the clause altogether, but the Government have gone some way to meet us, and we are grateful.
In future this "measure of last resort", as the noble Baroness calls it, is fortified by the fact that there will have to be a Statutory Instrument which is capable of annulment in pursuance of a Resolution of either House of Parliament. I presume that this in fact means "either House". It does not mean that if a case comes up, as one did quite recently—although on that occasion I voted for the Government—it will be said, as it was then said, that we had abandoned our powers on Resolutions. I hope this will not be the fact. I do not think there is much good in putting in an Act of Parliament something giving us power at this late stage in our history to annul a Resolution unless we are going to be able to do it. It would be far better to "come clean" and not to put it in at all. So I am assuming that now, in this year of grace 1968, if the Government put in a condition—and it has been stated by the noble Baroness to be a very important condition; that is to say, that a Resolution can be annulled by either House of Parliament—this House can take advantage of that provision if, in its wisdom, it so desires.
I see that this cause extends to the Isle of Man. I do not quite know why the Isle of Man is mentioned here. Surely it should be mentioned elsewhere or not at 250 all. Why should this very doubtful privilege and benefit be conferred on the Isle of Man? If the noble Lord, Lord Strange, were here I think he might be able to tell us what the Tynwald thinks about it.
§ NOBLE LORDS: He is here.
§ LORD OGMORE
The noble Lord, Lord Strange, is of course a descendant of the ancient Kings of Man and he will be able to tell us what the Tynwald thinks of this, because, as I understand it, the Isle of Man is one of the federal parts of this country. We have a Federal Parliament and not a unitary Parliament. We have powers over the subordinate Parliament of Northern Ireland; I suppose we have some powers over the subordinate Parliaments of Guernsey and Jersey, and obviously considerable powers over the Tynwald, the Parliament of the Isle of Man. As your Lordships know, I moved a Bill in this House on January 30 to provide for a subordinate domestic Parliament for Wales, and it intrigues me greatly to find that the Isle of Man is still in some way subject to the powers of the Federal Parliament at Westminster. With those few words, I have no strong objection to this Amendment—or no sufficient objection which impels me to carry this to a Division—and I am grateful to the Government for making it.
§ LORD FERRIER
My Lords, I should like to echo what the noble Lord, Lord Ogmore, has just said about this clause being an advance upon the one taken out of the Bill by this House. At the same time I should have liked to see it go further and, as I suggested in the previous debate, a measure of compensation settled by an independent body might have been a better way of approaching the matter. On the other hand, with the Report of the Banks Committee still to be published, it is conceivable that there may be some necessity for revising legislation when we see that Report. Meanwhile, I feel certain that the House will be happy to accept this advance on what was in the original Bill.
§ LORD STRANGE
My Lords, I feel I should answer the remarks made by the noble Lord, Lord Ogmore, because apparently something was being said about our "Legs"! As the noble Lord knows, it belonged to my family and it was sold to the Queen and the Royal 251 Crown, under slight duress, because they did not approve of the way we were smuggling, and it has been run, in a way, by the British Government ever since. But the oldest Parliament in the world has continued there, and of course we fly the Queen's flag as Sovereign—the Manx flag with the Legs—rather than the Union Jack, which is the Government flag.
I must say for the Isle of Man that it had, per head of the population, more freely enlisted men in both Wars than any other colony in the British Empire, which shows that we are fantastically loyal to ourselves and most other people. We do not stand (or sit) with a cup out, but if anything drops into it we say "Thank you" very nicely.
§ BARONESS PHILLIPS
My Lords, may I express my gratitude to the noble Lord, Lord Strange, for his, as always, fascinating account of the Isle of Man. I can assure the noble Lord, Lord Ogmore, that Northern Ireland requested to be included in this, so one can only assume that the Isle of Man equally requested it. I am quite sure that even a Socialist Government would hesitate to extend any legislation where it was not wanted—
§ BARONESS PHILLIPS
Yes, my Lords —if it had not been requested.
I am grateful to the noble Lords, Lord Ferrier, Lord Ogmore and Lord Sandford, for accepting the fact that the Government have gone some way to meet their point. Also, I take the point made by the noble Lord, Lord Ferrier, in regard to the Banks Committee. We are, of course, awaiting an opportunity to debate their recommendations.
I should like to repeat that it is in the interests of the Minister of Health to have a strong and healthy pharmaceutical industry, and that there would never be an attempt to drive a wedge between the industry and the Minister. I think I can reassure the noble Lord, Lord Ogmore, that if an Act of Parliament in fact says "either House of Parliament" this must mean just that. I am very glad that all noble Lords have accepted the genuine 252 attempt to meet the point made by your Lordships.
§ BARONESS PHILLIPS
My Lords, I beg to move that this House doth agree with the Commons in their consequential Amendment No. 3.
§ Moved, That the House doth agree with the Commons in the said Amendment. —(Baroness Phillips.)