I beg to move, That the Bill be now read a Second time.
Last year, my name, like that of many other hon. Members, went into the hat in the ballot for Private Members' Bills. I confess that I did not expect my name to come out No. 3 and I did not know anything about it until I arrived in my constituency that afternoon to be confronted by people from the newspapers and others wishing to know what kind of Bill I would introduce this year. My local people were somewhat disappointed that I could not there and then tell them the type of Bill which I was likely to introduce.
I came to the House on the Monday following my success on the Thursday and was approached by a number of hon. Members and received a number of letters from various organisations and people suggesting that their proposed Bill was most worthy. No doubt most of the people who communicated with me had very good Bills to present. I felt that with a Private Member's Bill one was somewhat limited and that if I could introduce a Bill which, in the main, would benefit humanity that was the line of approach that I should pursue.
At the time of the ballot attention was focused in the newspapers and on the other communications media on the thalidomide problem. It was one of the talking points throughout the country—the plight of those children, the plight of the families. In particular it was brought home to me in this House very forcefully when, about that time, a business friend of mine was here in London and he and his wife made a visit to this House. I was fortunate to obtain a ticket for the Gallery for the wife whilst her husband and I talked business, and she spent some time in the Gallery, after which she met us in the Central Lobby and certain criticisms, with which I will not weary the House, were made about this House. After our talk about business problems that friend of mine and his wife raised the whole question of the thalidomide children and I was shaken because that lady confessed to me that during her pregnancy they bought the thalidomide drug; but, fortunately for her, it was not taken. Had that drug been taken it is quite possible that there could have been one more added to the list of the thalidomide children.
That was the course by which this Bill was considered. After consulting my hon. Friends the Members for Stoke Newington and Hackney, North (Mr. Weitzman), Stoke-on-Trent, South (Mr. Ashley) and Manchester, Wythenshawe (Mr. Alfred Morris) I readily consented, despite my own limitations in presenting a measure of this kind, that that should be the topic of my Bill.
In essence what we are seeking to do is this: we are seeking to get higher standards—the highest possible standards —of safety in the sale of drugs. We are seeking to protect the general public.
I do not claim any virtue whatsoever. I am deeply conscious of my own faults, failings and limitations, but I have always tried to make it a rule of my life—I hope I may be forgiven for using the personal pronoun—to put myself in the other person's position. When there is a question about housing I ask myself, would I like to live there? And if I would not, why should I condemn someone else to do so? In considering the thalidomide families I ask, had it been a son or daughter of mine, what would have been my reaction? It is in that spirit that this measure is presented today.
I am not unmindful that after we announced the Bill certain newspapers were helpful. Others were more or less passive. The Times, drawing attention to my Bill, said that its
second reading in February is likely to be debated in an emotional atmosphere".
I make no appeal for being emotional. Had the writer of that leading article in The Times had thalidomide children or a thalidomide child he would probably be emotional. So let us not talk a lot of nonsense about being emotional. What would our reactions be if we were in the shoes of the thalidomide families? Therefore, if I were the father of a child like that—thank God I am not—then I should want something more than sympathy.
Sympathy is all right so far as it goes, but one cannot live on sympathy. I would want some practical help and some practical advice.
My hon. and learned Friend the Member for Stoke Newington and Hackney, North, sitting here behind me, made the suggestion of what should be the subject of the third Bill in the private Members' Ballot. This Bill is a simple attempt to redress the situation as it is at the moment, limited though the terms of the Bill may be. As I have already said, I believe that I am echoing the sentiments of thousands of people in this country of all political parties and of none—this is not a party political matter —in paying tribute to the excellent work done by my hon. Friend the Member for Stoke-on-Trent, South for the thalidomide victims, and not without success, though, perhaps, he has not been as successful as he would have hoped.
Some newspapers are to be congratulated for fearlessly fighting for greater help for these families. I am not one for a lot of flannel and never have been, but I think tribute must be paid to the editor of The Sunday Times for the excellent and successful campaign conducted in its columns on behalf of these unfortunate children. I congratulate the editor of The Sunday Times because it has rendered outstanding service for humanity, for human beings, unlike its counterpart The Times. The Times had at first enthusiasm and then, unfortunately, it became somewhat lukewarm. I hope that that is not attributed to the editor of The Times because if my information is correct he comes from a village neighbouring that in which I was born down in Somerset—so I am told. So we had the support of at least one great newspaper fighting for us. It is one thing to pay lip service. It is the easiest thing in life to pay lip service. It is far harder to battle against certain elements and powers.
The problem, as I understand it, has not yet been solved—eased, no doubt; and I hope that this small measure presented by my hon. Friends and myself will do what it is designed to do, to help humanity, certainly not to degrade it. Average Mr. Citizen and Mrs. Citizen are expecting that this problem will be dealt with on the Floor of the House now. In my humble submission this Bill is just one step towards that end. It is said in the old Book that open confession is good for the soul. With my Methodist background I would readily accept that.
The main ingredients of the Bill are legal. I am not a lawyer, and I am sometimes glad that I am not when I read in the newspapers about how easy it is for certain lawyers to sneer, as in the Poulson case. I have to rely upon my lawyer friends for their guidance and welcome help. Therefore, the author of the Bill is not the hon. Member for Carlisle, although his name comes first. The author is my hon. and learned friend the Member for Stoke Newington and Hackney North, who is responsible for drafting the Bill. I hope that he will catch your eye early on, Mr. Deputy Speaker, because he will be able to deal with all the legal niceties about which I know nothing.
The Bill introduces a condition on the sale of medicinal products and drugs. It says, in effect, that they shall be reasonably safe for use for the purposes for which they are intended to be used, and lays down certain criteria of safety.
The words "it is reasonably safe" in Clause 1(1) are important. In considering whether a medicinal product or drug is reasonably safe one must consider whether it might be used otherwise than on medical advice, one must have regard to the conditions that it might cure or relieve and whether it might have other, undesirable effects. I understand that at present before he can succeed in an action a person using a drug has to prove that the seller, distributor or manufacturer was negligent. I concede that this may be difficult.
It is not the intention of the promoters to reduce research. We all know the great progress that has been made with drugs and their great benefit to humanity, and long may that progress continue.
If the Bill gets a Second Reading we shall be ready in Committee to consider any amendments which will properly safeguard the interests of the drug companies compatible with the object we wish to achieve, which is the safety of drug users. We think that the Bill is a step in the right direction.
The remedy is given not only to the immediate purchaser but to anyone using the drug and the remedy is against the manufacturer, seller or distributor. It is difficult for me as a layman to explain the position in law.
Another important aspect is the unborn child. No child is ever consulted about whether he or she wishes to be born. It is time that it was made clear in law that the unborn child has rights.
I recognise that there may be objections to the retrospective provision in Clause 3, but here again we are not hard and fast and we are prepared to look at it again in Committee so that collectively the House can remedy the defect in the law.
Clause 4 is of general application and puts on the courts the duty of receiving and giving proper attention to actuarial evidence. Clause 5 amends the Limitation Act 1963. Its effect will be that the limitation period will not begin to run until the time when a person knows that he has a claim in law. I see nothing wrong with that, as a layman.
Clauses 6 and 7 deal with all disabled children. I should like to see the day when every child who is born deformed will have greater security than he does now. That reform is long overdue. If we in the House—cutting the political cackle—can collectively do something to help all children who are born deformed posterity will be grateful to us for getting together, irrespective of party, and removing the present anomaly. Disabled children for too long have been forgotten. But the conscience of the nation is beginning to awaken. Into whatever home he is born, a deformed child has the right to educational facilities and services. Here again, I am grateful to my hon. Friend the Member for Manchester, Wythenshawe who introduced the Chronically Sick and Disabled Persons Act 1970, the provisions of which go a long way towards helping disabled children.
The Bill lays a duty upon local authorities to provide special educational facilities for certain classes of people. Local authorities also have a duty to give information to the Secretary of State about services provided, and this information must be reported each year to Parliament. That is a matter of priority, to enable the House to have an annual review so that we can put our finger on the pulse and know what is happening about these unfortunate children.
I do not know what the Government's attitude is towards this measure. I have not officially consulted them, and I do not think any of my hon. Friends have. However, I hope the Government will not turn down the measure out of hand. I hope they will allow it to go into Committee so that between us we can improve the Bill and make sure that any little loose ends are tightened up.
I appeal to the Government: whatever you do, do not use the steamroller, for if you use the steamroller, the effect could rebound. I hope the Government will not use the excuse of the Royal Commission. If they do, I am prepared to force this matter to a Division. A Royal Commission could take four or five years, and in the meantime the problem would still be with us. This could be an interim measure before the Royal Commission reports. Therefore, I do not want to hear the argument that a Royal Commission is looking at it.
As The Sunday Times said the other week,
To bury it will be to bury for years, repeat years, the hopes of a better life for thousands of people disabled now and affect thousands more of us who may be unlucky enough to join them in future accidents of one kind or another.
Those of us who enjoy good health and whose families enjoy good health and strength should always remember the other person who is not as fortunate as we are. In a non-party spirit I commend this Bill to the House, weak though certain parts of the Bill may be. Let us look at it and do something for humanity. If we do that, posterity will salute us.
I am grateful to you, Mr. Deputy Speaker, for calling me so early in the debate after the sponsor of the Bill, the hon. Member for Carlisle (Mr. Ron Lewis), has spoken, because anyone connected with the pharmaceutical industry, as I am, must feel a deep sense of compassion and concern about the tragedy of the thalidomide children. I declare an interest straight away as a director of a group of pharmaceutical companies.
The atmosphere which surrounds this whole matter and which has given rise to the Bill is understandably and inevitably emotional, as the hon. Member for Carlisle has said. Of course, I do object to that. But I think we could look at it from a different point of view. I say that for the very reason that as it is an emotional matter we ought to try to discuss it as unemotionally as we can—I admit emotion must come into it—and try to consider also the consequences which might follow if the Bill should be enacted in anything like its present form.
Certainly, as drafted, it would seriously damage the pharmaceutical industry in Britain, and quite apart from the unemployment that that would cause and the loss to the country of foreign exchange, because this industry is a very big export earner, there are also serious implications for the health of the people behind this Bill.
The hon. Member for Carlisle said—and I accept it from him, of course—that it was not the intention of the Bill to reduce research. But I cannot see that it could possibly have any other effect. In the face of the provisions of the Bill, any manufacturer who continued to spend large sums of money on research and development designed to produce new drugs would be almost certifiable because the game simply would not be worth the candle.
It may—indeed, it often does—take millions of pounds and many years of scientific endeavour to produce one new marketable medicine out of a very large number that are researched every year. If we want better cures we must innovate new and better drugs. The very fact that they are new means that they may not be 100 per cent. safe. No new drug of any real significance can be 100 per cent. safe—at any rate, not until it has been used extensively on human beings for a number of years. There is really no way of assessing its potential for good or ill until it has been tried on human beings for quite a long time. That is the nature of any innovating industry, not only the pharmaceutical industry.
If we discourage and penalise innovation, we cannot expect new life-saving drugs. An element of risk is part of the price of progress in this area, and if we try to eliminate the risk altogether, manufacturers will be bound to confine their new medicines to what one might describe as "me-too products" based on existing drugs, with no doubt minor improvements, and with very little, if any, danger but equally with very little increased efficacy compared with proved drugs already available.
The health revolution, as we could describe it, in the last 30 or 40 years has come about—I hope the doctors among my colleagues will forgive me for saying this—not so much because the skills of the medical profession have increased beyond all recognition during that time but mainly because doctors have had the assistance of new life-saving drugs pioneered by the pharmaceutical industry which have made formerly killer diseases relatively harmless.
My hon. Friend has laid great stress on the dangers of research in new drugs. Is it not a fact that there are many new drugs in common usage today which can in exceptional circumstances produce damage and injury and that they would be caught by this Bill?
I do not know whether my right hon. and learned Friend is right. We have the Committee on the Safety of Drugs, and any adverse reactions of a serious kind should be reported to that committee at once. Any reputable manufacturer would certainly do so.
That is true. There are some very well known drugs—aspirin is one of them—which have an effect on a small number of people who have what one might call an abnormal condition. That is absolutely true. I do not see how any pharmaceutical company can guard against that effect. What is of benefit to the vast majority of patients may, exceptionally, be damaging to a few of them.
I think what my right hon. and learned Friend the Member for Gloucestershire, South (Sir F. Corfield) was asking was whether it is not the case that the Bill would bring in all these unexpected accidents when some people are allergic to certain drugs. An antibiotic—penicillin, for example—can kill a person. An anti-depressant, which is a safe drug for the majority of the population, can occasionally lead to a skin condition. Would not the Bill bring in all these factors and permit compensation on these chance occurrences?
If that is the point that my right hon. and learned Friend had in mind, I absolutely confirm that.
To resume my main argument, the cost to the patient in pain and suffering and what might be called "curability" might be very heavy if by a Bill of this kind the House of Commons discouraged innovating progress in the pharmaceutical industry.
Surely the hon. Gentleman would agree that the United States is not exactly starved of research in comparison with us. Yet is there not strict production liability broadly on the lines of Clause 1 over virtually all manufactured products in the United States as a matter of common law? They have stronger controls and more research.
They do, and it results in considerable delays which may prevent good drugs coming on to the market which would be of great value. The bureaucratic nature of the organisation which controls drugs in the United States is not an example which I would select in this context or in any other. It is discouraging and it delays the introduction of new medicines which may be of great value. I much prefer the structure of our Committee on the Safety of Medicines.
I am sorry to interrupt the hon. Gentleman again but this is a crucial point at the very heart of the argument. Is the hon. Gentleman putting on record the fact that he believes that our drug industry is more advanced and has more innovations than the American drug industry?
Obviously not. The resources available to the American drug industry mean that more is spent on research and development in the United States than in the United Kingdom. That is self-evident, and many drugs used here emanate from the United States. I would not say anything as foolish as that. What I am saying is that our system to safeguard the patient is probably more efficient under the Committee on the Safety of Medicines than that operating in the United States.
May I press the hon. Gentleman on this? Despite his eloquence, his case founders if the Americans have a law of this kind and all the drastic consequences about which we have heard are not applicable in the United States. There is no point in the hon. Gentleman making this case unless he answers the question put to him by my right hon. Friend the Member for Blackburn (Mrs. Castle) about the American drug market. Can he answer it?
I do not think that the case founders at all. It is true that under this Bill a few like the thalidomide children might be provided with adequate compensation if things went wrong. But my point is that the health and perhaps the lives of millions of others might be put at risk in the process. That is my simple point on the question of research. In correcting the potential harm for a few hundred people, we might be killing the potential for good for literally hundreds of thousands of people.
It is all very well for the hon. Gentleman to make that kind of remark from a sedentary position. He does not know what he is talking about. We cannot have it both ways. The Bill would be prejudicial to future patients because it would make the risks for the pharmaceutical industry virtually unlimited and therefore virtually uninsurable. The British Medical Journal wisely pointed out that the risks of treatment must be balanced against the risks of disease and the best legislation in the world cannot really alter that dilemma.
In what ways would the Bill change the present law with regard to giving warnings before drugs are prescribed? My wife suffers from urticaria, which is an allergy disease. Every time she is prescribed a medicine, warning is given to her in advance. This Bill will not alter that.
I did not say that it would. It is worth bearing in mind—and perhaps it arises on the hon. Gentleman's point—that circumstances are very different today from those before the thalidomide disaster. Since then, and because of that tragedy, we have the Committee on the Safety of Medicines and the 1968 Medicines Act, introduced by the Labour Government. Both are designed to limit the risk to the patient and they do limit the risk as far as it can be limited. But they cannot eliminate the risk altogether and because the liability, even though there may be no negligence, may run into millions of pounds, no insurance company will give unlimited cover. But without full insurance the smaller and medium-sized companies could be made bankrupt and be forced out of business. Even the largest companies—and the Distillers Company is not really what I would describe as a pharmaceutical company in the proper sense of the word—might not be able to foot the full compensation bill.
I am not suggesting for a moment that pharmaceutical companies should opt out of their responsibility. Certainly they should shoulder it as far as reasonable insurance cover will allow. But over and above that, and provided that there is a total absence of negligence, the Department of Health and Social Security, which has indirectly authorised the medicine, should play its part and the State ultimately should provide some form of Government-backed insurance to supplement the cover which can be obtained by the industry in the ordinary insurance market. I hope that that will be the answer, but it is not provided for in the Bill. Bearing in mind the large sums of money which may be involved, it is my case that even the largest companies will not be able to foot the bill without insurance cover, and they will not get unlimited insurance cover.
This suggestion is not without precedent. I understand that Governments have already accepted some responsibility as insurers of last resort in the case of nuclear energy accidents which might involve very large sums of money.
Although we are discussing the pharmaceutical industry today, the issue is really a much wider one. I suppose that most people would acknowledge that cigarette smoking probably is far more lethal than all the drugs in the world put together are likely to be. Even motorcar injuries where the driver involved is either not at fault or cannot be traced are another category which might be considered. Not long ago the Observer newspaper pointed out that this Bill has given new hope to 44,000 miners who think that it may enable them to claim £330 million from the National Coal Board. There are many categories which are not covered by the Bill which are comparable.
There is the other aspect raised by my right hon. and learned Friend the Member for Gloucestershire, South (Sir F. Corfield). It is that a medicine may be absolutely safe for almost every user, but there may be a very small proportion of people who react to it abnormally and who suffer illness or injury as a result. I do not see how it is possible to guard against that sort of circumstance. To do so is to deprive everybody of the benefit of the drug.
To sum up the argument that I should like to put to the House: if the latest offer by the Distillers Company is acceptable, the immediate need for the Bill will have disappeared. [HON. MEMBERS: "No".] I think so—if it is acceptable. I do not know whether it is acceptable, but if it is, the immediate reason for the Bill, the thalidomide tragedy, will have been dealt with.
It would then be right to consider the whole subject in much greater depth and in a much wider context and the best way in which to do that would be by the Royal Commission that the Government have decided to appoint. I do not think that we should try today to anticipate the work and the findings of the Commission. As The Times pointed out about two months ago, under the Bill a child disabled by the use of a drug would be in a far better compensation position than a child born deformed because its mother had been injured in a motor car accident during her pregnancy. That cannot be the intention of the Bill, but it would be the effect.
We have to look at this whole subject in a much wider context. It would be unwise for the House to deal with a complex subject such as this by means of a Private Member's Bill, however well drafted, designed to remedy only one aspect of a wide-ranging and difficult problem. Although I accept absolutely that the Bill is extremely well intentioned, I hope that the House will reject its somewhat limited, almost piecemeal, approach and will decide to leave it to the Royal Commission and subsequent Government legislation, which I hope will follow, to deal with the whole subject much more comprehensively.
I was sorely tempted to interrupt the hon. Member for Surbiton (Mr. Nigel Fisher) on a number of his comments, but I refrained from doing so as I want to deal with them later.
The House is indebted to my hon. Friend the Member for Carlisle (Mr. Ron Lewis) for using his luck in the ballot to introduce the Bill. The House will wish to congratulate him on his excellent presentation. He said some kind and unkind words about lawyers, but, in spite of what he said about his lack of knowledge of the law, he seems to have put the matter clearly. I am grateful to him for permitting me to co-operate with him in presenting the Bill.
As we all know, the need for this legislation—and the House will, I am sure, recognise that it is an urgent need—has been highlighted by the thalidomide tragedy. But whether that had occurred or not, in an age when almost everyone uses toxic, or potentially toxic, preparations and is necessarily exposed to their effects, it is surely right that we should examine as soon as we can the existing law of negligence in the sale of goods and see whether it is sufficient to determine liability.
The first part of the Bill deals with warranty; the second with actuarial evidence; the third with an amendment to the Limitation Act 1963; the fourth with reports and services provided for disabled children. The hon. Member for Surbiton concentrated on one and said nothing about the usefulness of the other parts.
I shall deal first with warranty. The thalidomide tragedy may itself be a justification for this part of the Bill, but it is not the sole reason. Whatever the interruptions made about the use of ordinary drugs and their possible effect, the public needs protection from their consequences when the drug industry, because of commercial pressure or for any other reason, falls below the highest standards and fails to take every possible precaution.
Clause 1 provides that there shall be warranty that a medicinal product or drug shall be reasonably safe to be used for any purpose for which it is intended. The onus of proof has been shifted. As the law stands, a person making a claim must prove that any damage he suffers is due to the negligence of the drug manufacturer. Under the clause, the onus will be on the drug company to prove that it it reasonably safe.
The court will have to consider all the evidence to be satisfied that the onus is discharged. Among other things, it may consider the use of drugs prescribed for a specific purpose that might in certain instances affect those people more prone than ordinary people to certain effects. Certain guidelines have been laid down—whether it may have been used other than in accordance with a prescription, that is other than on the advice of a doctor; the nature and severity of any condition or symptom which its use may cure or relieve; the knowledge of the medical practitioner about, for example, the terms of advertising the drug by the drug manufacturer. I do not for a moment suggest, and I am sure that my hon. Friend the Member for Carlisle would not suggest, that those criteria are absolutely correct, or that the list is exhaustive. They may be examined in Committee and any useful addition or alteration made there by suitable amendments.
It would plainly be wrong to restrict the remedy in law to the contracting parties, that is, the purchaser and the seller. Thus, in Clause 2(1) we provide that the remedy shall he available to any person using the medicinal product or drug against anyone who has manufactured, sold or distributed it. That provision gives a remedy to the unborn child.
It may well be that the courts will decide, if a case arises now, that as the law now stands, there is such a remedy, but to date there has been no such decision in this country. The intention here is simply to put the matter beyond doubt. The House will know that on 19th January this year the Law Commission published Working Paper No. 47 on this topic. It stated that the Commission had been asked by the Lord Chancellor to advise on this subject. It said that the question raised by this request came within a fairly narrow compass but raised points of great social interest and concern.
Did not that working paper also state specifically:
We have not in this Paper been concerned with questions as to whether any strict products liability should attach to the sale of drugs".
I shall deal with that. The Law Commission examined the matter in detail and expressed the view that when a child was born with a disability caused by someone's fault occurring before birth, he should be entitled to recover damages.
I know that there has been some discussion about the effect on the feotus. The Bill refers to
a person who suffers injury
so the foetus must become a live person before an action will lie.
I refer back to Working Paper No. 47. It says:
we think it preferable to postpone consideration of this problem until we have consulted the medical profession.
It does not enter into the medical aspects of drug application and the foetus.
With respect to the hon. Gentleman, no point arises with regard to that. We are not troubled by medical questions about the foetus. We are concerned with one point, and one only. The Law Commission says quite clearly that where an unborn child suffers disablement because of neglect, breach of duty or whatever it may be there shall be a remedy for that unborn child when he comes a person. That is laid down in the Bill. I do not want to go into this in greater detail. By all means let us discuss the matter in Committee. Let us consider then whether there is any way of dealing with any doubt that may arise. All that I want to see in the Bill is what I believe is the law of England. I think that it ought to be declared and put in the Bill.
I shall in a moment deal with retrospection.
I emphasise that the foetus must have become a live person and that the words in the Bill are
a person who suffers injury".
If there is any doubt about that, let it be discussed in Committee. No one intends to let anything slip through, and that must affect any point of view put forward by the hon. Member for Surbiton. The declaration required is merely a statement of the existing law. It may be said that the remedy in the Bill is given to an unborn child who suffers injury or loss as a result of the parent using a medicinal product or drug and that the remedy ought to be extended to other cases, but that, too, can be considered in Committee.
Clause 3 makes provision for retrospection. It has been much criticised, and as a lawyer I dislike retrospection as much as anyone does. I say quite frankly that the clause was inserted because of the thalidomide tragedy, and I hope that with a proper settlement of those cases my hon. Friend will agree to delete the clause because I do not think that the Bill ought to contain retrospective legislation.
Soon after the Bill was published The Times said in a leading article that it was a well-intentioned and praiseworthy attempt to translate into law some of the lessons which had been learned from the plight of the thalidomide children. It suggested, however—and this deals with the point made by the hon. Member for Surbiton—that Clause I would involve the manufacturer in ruinous damages if, despite all care, the drug turned out to be unsafe and that it would discourage research. The article went on to suggest that a possible compromise solution might be to introduce into the Bill a defence by the manufacturer that he had taken every possible precaution.
Again, I merely say that I am sure that my hon. Friend will be prepared to consider that in Committee, but I should point out that for the last decade in almost every State in America there has been this condition of strict liability in the use of drugs. I am informed that previous wide variations among the laws of various States have been eliminated by the adoption in America of a uniform commercial code and that under this is included the warranty by manufacturers and distributors. An injured person would have a claim for damages for breach of warranty, as in this Bill.
It cannot be said that that has resulted in discouraging research in the United States. Would anyone suggest that the advancement of medicine is slower in the United States than it is here? Only this morning I received a cutting from the New York Times of 6th February—three days ago—which said:
that is the Food and Drugs Administration—
says cautious policy on licensing new drugs has prevented medical disasters in United States".
It deals with the thalidomide tragedy. It says that at the hearing FDA officials who defended the drug agency against recent sharp attacks were
proud of the fact that while the public has been deprived of no significant drugs, we have maintained the best safety record of any drug-producing nation in the world.
It goes on to say that
the United States continued to be a world leader in the development of significant new drugs, and had the best safeguards of any nation for preventing the marketing of unsafe or ineffective drugs.
With respect to the hon. Member for Surbiton, that surely answers his point. How can it be said that if strict liability is enforced here it will prevent research when there is the same sort of thing in the United States? There is strict liability there, and nobody could for a moment suggest that it has restricted research. It is not a question of having more money or facilities in America.
Surely the hon. and learned Gentleman knows that it was not superior surveillance which caused the Food and Drugs Administration not to pass the thalidomide drug but it was merely that it is so slow and bureaucratic that it had not got round to considering it. That is not a merit. It is a criticism.
Surely the answer to that is that the drug industry has this strict liability. The criticism is that if that strict liability is imposed here the drug industry will be ruined. My only comment is that that is utter rubbish. The drug companies make large profits. They are not charities. They do not exist for the good of our health. Our colds, our pains and our illnesses are a gold mine to them. The imposition of strict liability would remove spurious promotions. I am sure that insurance would always be available at economic rates to any industry which took every possible precaution in the manufacture of its products.
The real question is whether the public need protection. I am certain that every hon. Member would agree that the public do need protection. If we are to balance the need to protect the public against the possibility of the drug companies earning a little less money, I know what my choice would be.
With regard to the unborn child being given the right to claim damages, I merely pray in aid the words in The Times leader that this provision in the Bill can be welcomed with reservation.
I turn now to the question of actuarial evidence——
May I ask about Clauses 2 and 3? The hon. and learned Gentleman referred to the effect on the poor old drug industry. Will he spare a thought for the retail chemists caught by this Bill? Is it not a fact that a chemist selling a drug covered by the Bill would be liable, no matter when he sold it, however many years in the past and even when it was completely without negligence?
The drug company is liable in exactly the same way as in America for breach of warranty. That is the simple point. If the hon. Gentleman has any point which he thinks ought to be modified I am sure that my hon. Friend will be content to welcome him on the Committee and to examine any amendment he wishes to propose.
I turn again to actuarial evidence. Clause 4 lays down that in assessing damages in all cases of negligence, nuisance or breach of duty
it shall be the duty of the court to receive and give due weight to appropriate actuarial evidence".
My hon. Friend the Member for Carlisle has taken the opportunity to apply this provision not only to cases of effects from drugs or medicinal products but to all claims for damages. It may well be that the Short Title of the Bill is somewhat misleading and ought to be amended.
Again, there is the support of the Law Commission for this in Working Paper No. 41 on assessment of damages, issued on 18th October 1971. There has been considerable criticism in many quarters of the methods adopted by the courts in assessing damages. The Law Commission considered that in appropriate cases the use of actuarial techniques as an aid to or check upon assessment of present value or future pecuniary loss would be helpful.
I once more quote from The Times:
The clause imposing on judges a duty to receive and give due weight to actuarial evidence when quantifying damages is wholly desirable.
In a reference to the thalidomide cases which were settled in the recent privilege case in the Court of Appeal counsel said that Mr. Justice Hinchcliffe had remarked that he was treating the actuarial evidence with great caution. Counsel added that it appeared that the judge had largely disregarded it. Obviously, with proper consideration given to such evidence a great deal of difference would have been made to the amount of damages awarded.
I pass now to the more difficult part of the Bill—the proposed amendment, by way of Clause 5, of Section 7 (3)(c) of the Limitation Act 1963 dealing with the problem of interpretation. The argument as to the meaning of the words in the subsection occupied the Law Lords in a recent case—Central Asbestos Company v. Dodd—for several days. It divided them into three camps. This is a matter which might influence the rights and lives of many sick and suffering, mostly ageing, men and women.
May I briefly explain the point? Central Asbestos had a small factory producing asbestos. If asbestos dust is inhaled the person inhaling contracts a serious and usually deadly disease. Since 1931 there have been regulations prescribing the precautions to be taken. Central Asbestos broke these regulations and was fined. Its workmen contracted the disease and seven brought claims for damages. The defendants defended on the grounds that the plaintiffs were out of time, the damage having been done more than three years before the writ was issued. The statutory limitation bars a claim for damages, however meritorious, after three years.
With an industrial disease the claim accrues as soon as the injury is suffered. If a person contracts asbestosis some years before it has progressed sufficiently to be diagnosed, the time in which to bring a claim may have come and gone before he is aware that he has the disease. Parliament enacted the Limitation Act 1963 which, broadly speaking, said that such a person could bring his claim if he did so within 12 months of obtaining knowledge of the material facts. The material facts included, in Section 7(3)(c), the fact that the personal injuries so resulting were attributable to the negligence, nuisance or breach of duty of the defendants.
I can best illustrate the point by referring to the facts in the case of Dodd. Dodd, who suffered from the disease, knew more than three years before he commenced his action that the defendants had been convicted of a breach of the regulations. But the defendant's manager had told Dodd that he could not bring a claim because he was receiving disability benefit. Dodd believed that. In 1967 he met a fellow workman and learned that he was bringing an action. Dodd consulted a solicitor and issued a writ. That writ was issued within 12 months of the date when he learned that he could sue. The defendants said, "No, you are too late because you knew more than 12 months before that the defendants were at fault." The Master of the Rolls in the Court of Appeal held that in the words in Section 7(3)(c) "material fact" meant the fact that personal injuries were attributable "in law" to the negligence, nuisance or breach of duty of the defendants.
When the case went to the House of Lords three of the Law Lords said that the Master of the Rolls was wrong, and that the phrase did not mean "in law". But for the judgment of Lord Pearson, who held that he did not know the facts, Dodd would have lost the claim. For years in other cases the view of the Master of the Rolls has been thought to represent the true position in law. I venture to suggest that it was what Parliament intended.
The amendment seeks to make that clear. Certain provisions in Clause 5 are procedural, and follow the words in the Law Reform (Miscellaneous Pro- visions) Act 1971. The period of 12 months is also increased to three years. There are many applications of the Act in which the amendment may make all the difference between success or failure—between having a claim tried on its merits or being defeated by a rule of practice. The Observer, in an article on 21st January, said that if the amendment was made the major bar to compensating claims for pneumoconiosis, mostly from victims of mining, would be removed.
I have dealt with the first three parts of the Bill. I expect that it will be said, whatever the merits of the Bill, that it should not be proceeded with because a Royal Commission has been appointed. I have no doubt that the Solicitor-General will make this point as effectively as possible. I have had the honour and pleasure of crossing swords with him in other places on former occasions and I know that he will make the point with great force.
I would remind the House that the Prime Minister made the announcement about the Royal Commission after the Bill was presented. He was specifically asked by the Leader of the Opposition to make it clear that the right of Parliament to legislate on any issue would not be prejudiced by the setting up of a Royal Commission which might take years to report. The Prime Minister gave that assurance. I hope that the Solicitor-General will bear that in mind when he addresses the House.
I have taken the trouble of looking through the list of Royal Commissions appointed between 1937 and 1970. I will refer to only a few: The Morton Commission on Marriage and Divorce, appointed in 1951, reported in 1956; the Gowers Committee on Capital Punishment, appointed in 1949, reported in 1953; the Willink Committee on Betting, Lotteries and Gaming, appointed in 1949, reported in 1951. After those reports, in many cases many years elapsed before any legislation was enacted. Indeed, in many cases no legislation has been enacted to this day in connection with recommendations made.
I have some memories of departmental committees on which I had the honour to serve. We sat for years discussing vital problems and making vital recommendations. Years passed before anything was done, if at all, about the recommendations of the departmental committee.
Does not the hon. and learned Gentleman agree that in a matter in which the whole House is equally concerned the report could not only be expedited but acted upon much more promptly than has been the case hitherto?
I am speaking from experience from examining these matters. I have illustrated what took place.
The Lord Chancellor, when he made the announcement of the appointment of the Pearson Commission in another place, said that, because of the issues involved, he would not like to speculate about how long the Commission would take; obviously there could be no question of legislation in this Parliament. Meanwhile, the victims suffer if Parliament, which should deal with these problems as a matter of urgency and not delay them, is denied the opportunity of doing so.
It is a well known artifice—or should I use the word "dodge"?—on the part of the Government to put off legislation they do not like by appointing a Royal Commission or a departmental committee and by saying, "Let us wait until the committee goes into all these matters", which takes years and years, "and then we will decide what to do".
I want to say a few words about the remaining part of the Bill, about the part as to which I suggest there can be no possible criticism. My hon. Friend dealt with this in detail. It is an essential part of the Bill. The provisions of the Chronically Sick and Disabled Persons Act, which was introduced by my hon. Friend the Member for Manchester, Wythenshawe (Mr. Alfred Morris), require certain services to be provided by local authorities for disabled persons and local education authorities to provide educational facilities for certain disabled children.
Many of us have long been far from satisfied with the efforts made by many local authorities. We have sought in many ways, principally by means of questions to Ministers in the Department of Health and Social Security, to obtain in- formation. We have been denied this. We have pressed Ministers to go on television to make appeals to the public to ensure that local authorities carry on with this important work. We have been denied that.
Clauses 6, 7 and 8 are an effort to force local authorities' hands a little further. These clauses require this information to be given to the Secretary of State and put a duty upon the Secretary of State to report such information to Parliament each year. The House would then learn what has been done or, better still, it would learn what has not been done so that we can debate the report in Parliament and urge whatever Government are in office to ensure that more effective steps are taken to see that the provisions of that important Act are implemented.
I apologise to the House for the length of my observations. The Bill represents a real attempt to grapple with a number of vital problems. Let it receive a Second Reading. Let it be considered in Committee and possibly on Report and elsewhere. Let all these points that are made in criticism he made in Committee and be dealt with and effectively discussed.
The editor of The Sunday Times played a very noble part in drawing attention to the thalidomide tragedy. He was good enough to publish a leader last week referring to the Bill and headed, "A necessary Bill". I know that my hon. Friend has quoted this, but I hope that the House will bear with me; for I cannot do better in concluding than repeat the quotation from the last paragraph of the leader:
To bury it"—
that is, this Bill—
will be to bury for years, repeat years, the hopes of a better life for thousands of people disabled now, and affect thousands more of us, who may be unlucky enough to join them in future accidents of one kind or another.
There are in the House today many of us with an especial qualification to make a contribution to this debate. There are doctors. This is very much a matter for their contribution, because it depends very much on the point of view of those who practise in medicine as to how we interpret the Bill. There are lawyers. There is a great deal of most complicated law which has to be understood and explained to the House to enable it to reach a judgment today as to whether the Bill should receive a Second Reading. There are others who are concerned in the industry, as I am. I think that the House knows that I am a director of a drug company.
On the other hand, all of us, whether we are doctors or lawyers or involved in the industry, have another interest and another responsibility. That is to humanity and to people. The hon. Member for Carlisle (Mr. Ron Lewis), in his very sincere opening and presentation of the Bill today, appealed to us in our humanity to give the Bill a fair wind.
Thinking of that overall interest I would certainly wish to give the Bill a fair wind if I thought that in the whole of my experience the Bill was a good one. I am not saying that its intentions are not good. Although I am in the drug industry, I am not against severe limitations being put on the drug industry. I am not against the will of the House and of the public imposing heavy restraints on anyone who handles, produces or sells a substance which could be dangerous; because the drug industry produces products which are dangerous, whether they be in a bottle of aspirin which does not have to be prescribed and of which a person can take an overdose with fatal consequences, or whether it be a prescribed medicine which has gone through all the correct paraphernalia that exists today for testing, for scrutinising and for licensing by the Government.
Perhaps the general practitioner, through an inadequate knowledge of his patient and his patient's reactions, will make a mistake in prescribing a drug which was thought to be safe.
I am grateful to my hon. Friend. It is surprising in that sense. This is why I would say that, although I recognise the sincerity and the genuine aims of the Bill, there are gaps in it, particularly regarding the medical practitioner.
Perhaps I may be allowed to develop my speech. It will take into account something of the hon. Gentleman's point, but I imagine that my hon. and learned Friend the Solicitor-General will be able to deal with that aspect even more wisely than I can, because I am no lawyer.
I think that the Bill is a too hasty attempt to amend the law in this very difficult area. I am not saying that no attempt should be made to adjust the law. There should be adjustment in the law where there is danger to life and to health all the time. We had an adjustment by way of the Medicines Act, which has put very much greater restrictions on the scrutiny, licensing and issue of medicines. It was a very great contribution by the House in this area. But, as I have said, this Bill is too hasty an attempt. It is being considered, unfortunately—if not in this House then outside, and in the columns of some journals—in an atmosphere of high emotion resulting from the tragedy of the thalidomide affair.
It is also being considered without sufficient study. I say this taking into account what the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) said—that Royal Commissions take time to report. But my right hon. Friend the Prime Minister has ordered a Royal Commission to be set up to study this problem over a very wide range and to report urgently, and I believe that an order from him to it carries a certain urgency which is reflected from the whole House. It would be surprising if it were not so. This House must show responsibility in making legislation and must not hasten into legislation unless it knows all the facts.
I quoted from the statement made by the Lord Chancellor in another place when making the announcement. He said that he could not speculate how long the Royal Commission would take because of the many issues involved. Does the hon. Gentleman suggest that it could not be years before -the Royal Commission reported, and many years thereafter before there was legislation?
I make no comment on that except to say that the Lord Chancellor, as I have observed him, is not a man of over-great caution. I imagine that he is a man who errs on the side of urgency rather than otherwise.
This Bill could prejudice the negotiations at present in train between the sufferers of the thalidomide tragedy and the Distillers Company. The situation has changed with the recent very much bigger offer which Distillers has made in this respect. The Bill would immediately put a very severe onus on the Government to carry a burden. I think that it is wrong to propose such far-reaching changes in the law without awaiting the Royal Commission. If it would help the debate and those who are not perhaps in agreement with all I am saying, I say that the Government should by all means put pressure on the Royal Commission and tell it that we must have the answer quickly. It would not be the first time that a Government have asked for a Royal Commission to report quickly.
I want to say something about the way in which I feel this Bill would inhibit the acceptance of and activity in research and development in the drug industry and the progress in the development and innovation of new drugs. A recent article in the British Medical Journal on 13th January described the Bill as "confused" and said:
It takes no clear account of the duties of the medical practitioner in prescribing a drug nor of the patient in seeking its prescriptions, but places responsibility for damages solely on the manufacturer …
Faced with the prospect of such legislation, a pharmaceutical firm would be rash indeed to introduce new drugs to the market. No effective drug is safe, and until a drug has been widely used for several years there is no means of assessing its full potential for good or for harm.
Those are alarming words. But we are talking about an industry dealing in an alarming world—a world of producing medicines for doctors to prescribe. Society trusts the medical profession very much to keep abreast of modern medical and drug knowledge and apply it to the patients' problems. But we are dealing in an alarming situation and must remember, as the British Medical Journal says, that some of these products will not be
known to be entirely safe until they have been in operation and tried out for some years. I want to add how we do put some restraint on that practice.
If the hon. Gentleman's criticism is correct, is he suggesting that there is this widespread unrest and dissatisfaction in the United States, where strict liability on the lines of the Bill already exists?
The hon. and learned Gentleman spoke at some length as a lawyer, and I acknowledge his experience in the law on the question of the doctrine of strict liability in the United States. I will come to that point a little later because I want to make some observations about it.
There is another aspect apart from the restriction on the activity of the drug companies in research and development which I believe the Bill would produce. Over the last 25 or 30 years—which is really the history of the pharmaceutical industry—we have seen a great surge forward. I am proud to remind the House of what the industry has helped to achieve. It has largely helped, for example, to empty our tuberculosis hospitals, which today are used for other purposes.
I know, but I am suggesting that this progress is because of the innovations and the great leap forward after the war in research and development.
Again, a great number of drugs are being used in an innovatory way for cases of mental illness. This, to say the least, is exciting and an example of some progression in our approach to a very serious, if not the most serious, problem of ill health in the country. We all have anxieties about the state of our mental hospitals, with their overcrowding and the ever-increasing pressure for more and more acccess to them. One way out is to build more bed places, but another way is to develop further the progress of drugs which can cure or alleviate mental illness.
Another point which worries me in what I regard as a muddled or confused Bill is that it would appear to give special power to the victims of certain diseases and exclude from that power victims of other diseases in other circumstances. My hon. Friend the Member for Surbiton (Mr. Nigel Fisher) mentioned those who contract lung cancer or heart disease as as a result of smoking. There are also the 44,000 miners who suffer from pneumoconiosis. These are just two examples of sufferers who are, as it were. not to be given the special privilege of the facilities and opportunities which the Bill presents.
If the Bill were to go through it would also present to the manufacturing corn-panics a very serious financial problem. They would have to make immediate provision for heavy insurance against this doctrine of strict liability. I suggest that they would not be able to obtain sufficient insurance, because this is a rather open-ended Bill. The premiums would be so high that the situation could only give rise to an application to the Government to increase prices. I remind the House that the price of drugs is controlled by the Department of Health. Thus, if the drug companies could show that they had had to increase their expenditure on insurance—perhaps having to reduce their expenditure on research and development as a result—this might well result in a heavy increase in prices.
I want to ask my hon. Friend about the insurance aspect. I am myself an insurance broker and we maintain that virtually nothing is uninsurable. Nevertheless, it seems to me that it would be very difficult for the drug companies to get adequate cover on any terms. However, particularly in terms of retrospective liability, there would be many problems and I hope that Clause 3 which covers this point will make no progress. It poses massive problems.
I am not an insurance expert. I thank my hon. Friend for his intervention. He suggests, as an insurance man, that there are problems even from the insurance side. I am talking from the manufacturing side, where there are great problems. I do not think that insurance cover of a sufficiently high amount could be obtained if a case was brought against a drug company. As the Bill stands, it could mean that with insurance cover alone to meet such a claim or award, a medium-sized or small drug company might be placed in a position of having inadequate resources other than insurance cover. Such a company, if it went into liquidation, would not provide plaintiffs with any more than may have been found from the insurance cover.
That is not taking care of the problem. We are putting a liability on the manufacturing company that is almost impossible to hear. It could mean that innovating in this exciting area of chemical and pharmaceutical research would go out of this country. That would put a limitation on the industry and, I think, the wrong sort of limitation.
I think that the research could well go across the Channel. It could start and carry on wherever there was not such a strict limitation. Perhaps I may take up the point that the right hon. Lady has made regarding the United States, and the point made by the hon. and learned Member for Stoke Newington and Hackney, North about strict liability.
The hon. Gentleman, who, both inside and outside the House, has so much experience of the legislation that we have produced over many years, makes a very incautious observation. That is not what is happening. If he studies the debates on the Medicines Act he will learn that that is not a fair observation.
The doctrine of strict liability has been stated by some to apply with force in the United States, and to apply to the pharmaceutical industry. Product liability is generally established in the USA by showing negligence under common law tort principles. There are no Federal laws establishing liability, and, in general, no State laws bearing on the matter. Strict liability principles have not generally been applied to prescription drug manufacturers. I understand that in a few cases where the doctrine of strict liability has been applied it has been noted by the court that it does not lie when reasonable warnings about side effects have been given. Thus, the doctrine of strict liability as applied to drugs closely resembles that of negligence.
We shall be interested to hear observations from other experts like the hon. and learned Member for Stoke Newington, and Hackney, North and, I hope, the Solicitor-General about what I have had to say. I speak with some experience as a company director of an American drug company.
I do not want to detain the House. Many other hon. Members who have experience of many sides of this question want to speak. This is a worthy but muddled Bill. With all deference to the importance of Private Members' Bills, even on a Friday the House must not rush into Committee a Bill which has had inadequate study and without taking into account the many side effects. Therefore, I strongly recommend the House to think again before allows the Bill to go through.
I congratulate my hon. Friend the Member for Carlisle (Mr. Ron Lewis) on bringing forward this Bill. I know that he was deeply concerned about the plight of thalidomide children and disabled children in general. I am glad that he has brought forward this Bill which seeks to provide new opportunities for all disabled children, especially those disabled by drugs.
The House has just heard two of the most remarkable speeches from a drug company's directors that it has ever heard in its history. The glossy eulogy which we have heard is the kind of defence which was put forward on behalf of Distillers, despite the devastation caused by thalidomide. That specific defence of a specific company has now become a general defence of all drug companies. Apparently all drug companies are now whiter than white. It seems that they perform a miraculous service and that they are concerned not with profits but only with the welfare of children.
That is the interpretation I place upon the speeches of the hon. Member for Surbiton (Mr. Nigel Fisher) and the hon. Member for Canterbury (Mr. Crouch). I hope that the Solicitor-General will give the House a definitive answer to the point raised by the hon. Member for Canterbury about strict liability in the United States. The hon. and learned Gentleman must go on record—and his words will be carefully scrutinised—about strict liability in the United States. That is a cardinal point in this debate. I do not accept what the hon. Member for Canterbury said because, as I understand it, there is clear and strict liability in the United States. I am not a lawyer—
The hon. Gentleman is misleading the House by attacking my hon. Friend the Member for Surbiton (Mr. Nigel Fisher) and myself. Today the Government are fully wrapped up in the drug industry. The Government virtually control the drug industry. There is not a drug that can be offered for sale anywhere in this country without being licensed by Government. I am not suggesting that the drug industry is whiter than white, but it is responsible to the Government. Comparison with the thalidomide affair is not possible. Distillers was not traditionally in the drug industry and never had been until after the War, when the company came in, at the suggestion of the Government, to make use of its knowledge about fermentation to make penicillin. It had no background of research experience. That is not the type of drug industry that I have been talking about. I hope that the hon. Gentleman will recognise that.
The hon. Gentleman has behaved honourably in declaring his interest. I respect that, and so does the House. I am attacking the hon. Gentleman's speech and not his interest. I have no complaint against the hon. Gentleman personally, and he knows that. I am glad that he gave me the opportunity of emphasising that point. I am sorry that I did not do so earlier. But I still regard his speech as deplorable and quite wrong.
This Bill arises directly from the thalidomide controversy. In that dispute it became apparent that there were astonishing anomalies in the treatment of disabled people. There are anomalies which enabled wealthy and powerful drug manufacturers to use the law to create injustice they are anomalies which deny protection to a child injured before birth: they are anomalies which permit judges to make absurd decisions about damages and which prevent people with legitimate grievances from taking legal action. I hope that the Solicitor-General will not try to justify those anomalies. Unless the House changes the law of damages the sad charade of apparent, rather than real, justice will continue indefinitely. Apologists of the present system emphasise the importance of the due process of law, while the maimed and the injured are denied justice and the law is brought into disrepute.
At the heart of the Bill lies the imposition of strict liability on drug manufacturers. This is a concept which is derided by the defenders of the present system who have what I regard as old-fashioned ideas about justice. These are the men who believe that the right to sue for negligence is a foolproof guarantee of justice. In their book, no proof of negligence simply means that no money should be paid. I find that quite unacceptable. It is a shocking doctrine which ignores the practical difficulties of going to law and the moral responsibility of those concerned.
We seek to impose strict liability by the Bill because experience, not clever legal theory, has shown that people who are injured by the acknowledged failings of a product are denied damages since without proof of negligence they do not receive compensation. That is common knowledge among lawyers of all kinds. Most people have very little chance against wealthy corporations. That is a basic fact which is disregarded by defenders of the present system.
In the thalidomide dispute it was estimated that fighting a case for one child could cost well over £250,000. No ordinary family can afford that kind of money. Yet for any wealthy manufacturer determined to evade his responsibility it would not be an unreasonable sum. In normal circumstances, manufacturers find that the balance of advantage is heavily on their side and that all they would have to do would be to threaten people that they would fight in the courts, which would scare them off. That happens in many cases because individuals are afraid of the damages in which they might be involved.
The failure of an injured person to prove negligence usually means that, although he has been personally damaged, he is denied damages. He may be fortunate in an out-of-court settlement, but no disabled person should have to rely on that unpredictable legal lottery. In the case of people injured by drugs, the thalidomide dispute proved that a wealthy company was willing and able to fight indefinitely against disabled people—and disabled children at that. Yet the moment we seek to change the law and to impose strict liability the critics claim that it would discourage firms from carrying out experiments and research into new medicines.
The hon. Gentleman is using the phrase "strict liability" in exactly the same way as one would use the phrase "absolute liability". I understood from the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) that the purpose of the Bill was to switch the onus of proof of negligence but that there would still be a requirement of proof of negligence. It is clear from the Bill that somebody must adjudicate whether, under Clause 1(2), the drug concerned was reasonably safe for the purpose intended. The idea that people will be given a right which will automatically side-step the courts seems to me mis-conceived.
Strict liability is a very clear legal position. Strict liability would be imposed by the Bill; by imposing it on the drug companies, as we propose in the Bill, there would be no need to prove negligence. That is the weakness of the present system. I regret to say that many Members are willing to defend the grossly unjust system which allows the victims of drug disasters to suffer without adequate recompense. That is a fact, and we are not prepared to tolerate it. The Bill, or its equivalent, is vital because ordinary, poor people are unable to defend their rights in a court as they could not afford to pay the damages which would be involved if they were to lose.
Now let me deal with the point raised by the hon. Member for Canterbury. Many people say that strict liability would interfere with the carrying out of research. They also argue that it would impose a crippling cost on drug companies. If that is so, it must mean that many people are so severely disabled that the cost of compensation would be astronomical. But if the cost would be astronomical the problem is even greater than we had assumed. It is a graver national scandal than we had commonly assumed. Therefore, the need for the Bill becomes the more imperative; there can be no doubt about that.
However, if that contention is not valid and only a handful of people are affected, the financial pressure on the insurers of the companies is very small. There would therefore be no need for the companies to be profoundly concerned. So they can take it either way, because either way they fall off their horse.
But, curiously enough, the same people tell us—and we have heard it this morning—about the marvellous record of the drug companies. They say that there is painstaking care, that elaborate precautions are taken and that careful tests are made. If that claim is justified and there are to be no further drug disasters, the drug companies and their supporters have no cause to object to strict liability. All we want is for the Bill to be a long-stop. Therefore, there is no problem and the companies should not be worried.
However, the issue is not as simple as that, because over 60 new drug substances and 800 minor reformulations are received by the Committee on Safety of Medicines every year. It is common knowledge that no drug can ever be regarded as perfectly safe. Sir Derek Dunlop is reported as having said,
The public who demand progress must be prepared to take some risk.
So we cannot rule out the possibility of further thalidomide disasters at some time in the future even if great care is exercised. In addition, there may be major companies which deceive their customers by false claims about drug safety.
So how much weight should we attach to the objection that strict liability would adversely affect research into new drugs? The answer is, none whatever, because in the United States, where strict liability has been imposed for many years, they have a far better record of producing new drugs than we in Britain have. Strict liability has not affected companies working in that haven of private enterprise. It is a fallacy to say that it would affect companies here.
I would like to hear from the Solicitor-General or whoever winds up the debate the Government's views on the facts as disclosed by the OECD in 1969. The facts are that since 1950 there have been 138 important drug innovations in the world, many of them at the origin of the whole therapeutic family. The United States firms developed 67 of those top drugs—that is to say, 48·6 per cent. of the total—despite strict liability. British firms developed 10 of those top drugs, a mere 7·2 per cent. of the total—encumbered by only the flimsy imposition of the law of negligence.
These startling facts explode the theory that the imposition of strict liability will seriously impede new research. What strict liability will do is to end the scandal of our society benefiting from the advance of medicine at the expense of innocent people whose lives are blighted by errors.
Only a few of those people gain compensation, and that after expensive and exhausting battles in the courts to prove negligence. The rest are the neglected victims of progress. For them the only hope lies in strict liability.
This Bill would also provide protection to a born child injured in the womb. At first I thought lawyers were making heavy weather out of the difficulty of establishing that manufacturers had a responsibility to the child even before it was born. It looked a little like the usual silly legal ping-pong of which the layman is so contemptuous. But if dependants are in fact able to exploit Parliament's failure to legislate and protect children before they are born, then I believe it is our duty today to remedy this glaring omission.
This Bill will also ensure that no judge would ever again be able to make the kind of remark which Mr. Justice Hinchcliffe made when assessing the case of a thalidomide boy with no arms or legs. The learned judge said that the time for assessing damages based on actuarial considerations had not yet arrived.
The judge decided that the handicapped boy required an annual income of £2,500 to provide him with special care and to compensate him for loss of earnings during his working life. A simple problem remained: how much capital was required to provide that income? An experienced actuary estimated that £106,000 was required. Mr. Justice Hinchcliffe felt that £24,000 would be adequate. One of those gentlemen must have got his sums wrong. They could not both have been right—£106,000 estimated by one and £24,000 by the other.
If the learned judge—and it was the learned judge, not the actuary, who finally made the decision—was wrong in his estimate, that thalidomide child has to live with the result of that mistake for the rest of his life. It is no surprise to me that it has been calculated that that thalidomide boy will be penniless when he is 27 if he has to rely on that sum of money. He will have no arms, no legs, and no money when he is 27. That simple, tragic case illustrates our reason for insisting on the acturial considerations in this Bill.
Although the Bill aims at assisting people damaged by drugs it is not confined to people damaged by drugs. The clause redefining the period of limitation will be of special interest to many miners who suffer from pneumoconiosis. The inexcusable debarring of claimants up to 10 years of age by the 1939 Act has given way to more generous provisions, but they are still far from satisfactory since many sufferers are often unaware of their legal rights. If this Bill were enacted it would provide, if not justice, an opportunity for justice for over 40,000 disabled miners, and this would be a step forward which would be warmly welcomed by those of us who here represent miners.
The final clauses of the Bill are of paramount importance. When the magnificent Chronically Sick and Disabled Persons Bill was so skilfully piloted through the House by my hon. Friend the Member for Manchester, Wythenshawe (Mr. Alfred Morris), he struck a blow for all disabled people, a blow which had more impact than that of any other single Member of the House in any Parliament. He has made a niche in history for himself by that Act, and all of us with an interest in the disabled will always be grateful to him. When that measure went on to the Statute Book we hoped that there would be a revolution in the provisions for all disabled children. We have been disappointed. It is true that there has been great progress made by some local authorities, but too many of them are still evading their responsibilities, and it is time we closed the loopholes.
There is no point in local authorities crying for local autonomy if they are going to neglect their local responsibilities. Enough facts and figures have been produced in the House in the last two years to prove that some local authorities will neglect their disabled if we allow them to do so. The provisions of this Bill will make it difficult for them to do so. That is why it is important that those clauses should be enacted.
I did not expect the Bill to receive universal assent, though I am sure that it has won universal respect and good will. I appreciate the criticisms of it, though, of course, I do not agree with them. I understand them but I cannot accept them. A simple negative plus a Royal Commission is a grossly inadequate response to this Bill. If the Government are serious, as distinct from shadowboxing, about protecting the rights of disabled children, they will accept the Bill and help us in Committee to improve it. It is a Bill which redresses grievances, remedies injustices and enlarges the restricted horizons of disabled children. It is a Bill which deserves the support of both sides of the House.
I hope that it will be convenient to the House for me to intervene now. I am sure that all hon. Members are impressed by the moving and sincere speech of the hon. Member for Carlisle (Mr. Ron. Lewis) in moving the Bill. I hope that he will not criticise me for saying that in parts his speech was emotional. As he said, this is clearly an emotional subject. Unfortunately, when emotion is involved reality sometimes goes out of the window.
It is essential for the House to remember that hard cases make bad law. In considering the proposals contained in the Bill, which make important and far-reaching changes in the law, we must be sure that those provisions are right before the Bill is passed. To be sure that they are right the most careful investigation needs to be made and the best possible advice obtained. It is not only a matter of waiting for the Royal Commission's report. Other experienced bodies were asked some time ago to consider all the aspects contained in the Bill, and one can be fairly confident that, with the exception of the Royal Commission, those other bodies will report very soon. How long the Royal Commission will take, nobody knows. The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) gave us a track record of the time taken by other Royal Commissions, between being set up and reporting, and it was a fairly long period. This is an issue of such importance that the Royal Commission, although it is considering a much wider subject than that covered by the Bill, may feel able to report in a little less than the average time.
I am coming to that. I am sure that hon. Members on both sides of the House are anxious that the present negotiations between the Distillers Company and the parents of these unfortunate children should result in a satisfactory settlement. The Government fully share this wish and, as everyone is aware, a substantially improved offer has recently been made by the Distillers Company.
I am quite unable to give any time scale. The terms of reference are very wide and involve the important aspect of liability without fault which will require a great deal of investigation and on which the Royal Commission will require representations from all interested persons.
Does my hon. and learned Friend agree that the negotiations with the Distillers Company are still far from complete? They are certainly not home and dry. Does he agree that it would be a mistake to argue that the case of the thalidomide children and the Distillers Company is now in the bag, and past history?
With respect, I absolutely agree with what my hon. Friend says, but a little later I shall point out certain consequences to these negotiations which may unfortunately follow if the Bill should go through.
The Government have to consider not only the needs of the thalidomide children, which can be provided from the State services; their concern must range wider even than these unfortunate children. The Bill covers only those who may be affected by drugs, but there are other children who are born with severe congenital disabilities which impose great burdens upon their families. Those disabilities, unfortunately, as history shows, are just as severe as the loss of limbs and the other disadvantages suffered by thalidomide children. The Royal Corn-mission was appointed to consider that aspect. It was for that reason that my right hon. Friend the Secretary of State for Social Services announced on 29th November last that the Government had decided to set up an initial fund of £3 million to complement the services already being provided by statutory and voluntary bodies for the families concerned.
The Joseph Rowntree Memorial Trust has accepted responsibility for administering that fund and has been actively engaged in making plans to begin operations not later than 1st April. An announcement will shortly be made notifying those concerned of the date from which the trust will start receiving applications for help.
It is wrong to say that the Bill imposes strict liability upon the drug manufacturers. In fact, it does nothing of the sort. In considering the Bill it might be a good starting point to ask oneself, what is the object of the exercise? Is it to provide compensation for the thalidomide children, is it to pass a Law of Tort (Miscellaneous Reforms) Bill, or is it simply to have a serious discussion on important problems concerned with the law of tort? Even the Long Title gives the impression that the Bill relates to tort, but one finds that contractual liabilities are imposed. It is essential that we should be clear as to the objects.
If the Bill is simply for the purpose of assisting thalidomide children, it fails in that purpose for reasons which I shall demonstrate. It is not a Disabled Children (Compensation by Distillers Company) Bill and it could not be. It does not provide that the Distillers Company should pay compensation to the victims on the basis that it was at all material times liable to do so. What the Bill purports to do is to change the basis of liability retrospectively. It leaves room—unfortunately, ample room—for a great deal of argument about liability. If the Bill were passed in this form the question of liability would remain unresolved even though the rules were changed.
When one attempts to change the rules serious consequences arise for parties to existing proceedings, in this case the Distillers Company and the parents who are negotiating a settlement. That settlement is not home and dry or in the bag. That settlement is being negotiated on the existing law. If there is even a chance—and that means if the Bill receives a Second Reading today—that the rules are likely to be changed, it would in my view be impossible for those parties—the Distillers Company and the parents—to come to any final settlement until the fate of the Bill is known. No one could advise either party on the proper settlement figure when the rules might be changed if the Bill in its present form received the Royal Assent.
If the Bill provided certainty—which, as one reads it, it does not—there might be some ground for saying that, although it delayed the negotiations, the Bill would eventually help the thalidomide children and therefore was a good one. But, in fact, it does very little to help them. It leaves the law in a state of considerable doubt. Although some aspects may be cleared up, others remain hopelessly obscure.
Is it right that we should interfere with negotiations or delay the settlement which one hopes will eventually be achieved—a fair settlement to both sides—by creating a rule which muddies the water, makes what might be fairly clear at the moment much more obscure and produces no tangible benefits?
If the retrospective clause were withdrawn, the settlement that would be considered—I cannot say that it would be effected—between the Distillers Company and the parents would be based on the law as it was at the time that any civil liability might have arisen. That would be one of the consequences. There is no problem so far as the Distillers and the children are concerned if the retrospective clause is withdrawn.
I will take the clauses as they are. The pattern of Clauses 1 and 2 is the implica-of a warranty on the sale of a drug to the effect that
it is reasonably safe to be used for any purpose for which it is intended to be used.
I hope the hon. and learned Member for Stoke Newington and Hackney, North, who is an old colleague of mine in other buildings, will forgive me if I appear now and again to be a little critical of his drafting. The warranty is implied in Clause 1. Clause 2 provides that where a person uses a drug sold in breach of this warranty and suffers personal injury and loss, he may claim damages from any person who manufactured, sold or distributed the goods.
That provides immediately in one's mind a chain. I will give one or two examples of the sort of chain that will arise. Let us start at the top of the chain with the drug manufacturer—this is the most convenient one to look at—and then go to the National Health Service, and from the National Health Service organisation out in one direction to the hospital and in another direction to the chemist who will sell the drug direct to the patient, although it is not in law a sale, and finally out to the country doctor—not the ordinary general practitioner—who has to keep a stock of drugs and who is his own dispenser to some extent because he is practising in an area where there is no chemist quickly available.
Let us assume that in any one of those cases there is a ground for an action, and the plaintiff, the patient who has suffered, wishes to go to court. Is he to take all three? Is he to sue the hospital, the National Health Service and the drug manufacturer? The drug manufacturer has manufactured the drug and the others have distributed it. If so, as the Bill is set out at the moment, he is suing in contract. It would be quite impossible for the judge then to try to make them all responsible because, although this is slightly technical, I must tell the House that they would not be treated as joint tortfeasors and therefore jointly liable.
If it were decided to sue just the chemist because he is the easiest one, and the chemist has three of four other claims and goes bankrupt and therefore one cannot recover anything from him, one would not be able to say "That is all right; he is no good so we will now go for the manufacturer." When one has two or three rights, as one would have here, when they are not joint tortfeasors and one sues one of them and succeeds in the sense of obtaining judgment against him, although one cannot get the money, that right is extinguished. That is another serious consequence of the wording in the Bill as at present drafted.
The implication of a warranty of this sort is reminiscent of the Sale of Goods Act 1893, which was drafted in days when drugs of this sort—thalidomide in particular—with side effects were not even considered. It is not surprising that to try to choose words from the 1893 Act is not appropriate here.
The first question to ask is: what does "reasonably safe" mean? Is a drug reasonably safe if it has a side effect which kills or injures people, regardless of the state of medical knowledge? That question is recognised by the draftsmen of the Bill because Clause 1(2) sets out the various factors to which a court shall have regard when considering whether a product was reasonably safe.
Inter alia certainly. But those are matters to which the court shall—not "may"; it is mandatory—have regard. Subsection (2)(d) states:
the extent to which the possibility that it may produce or precipitate such conditions or symptoms is likely to be known to such medical practitioners as may be likely to prescribe it.
Assuming that this Bill was law in the early 1960s, in the days of the initiation of the thalidomide disaster, is it possible that any doctor who prescribed would come to court and say "I did know that these conditions or symptoms were likely
to be caused by this drug"? If that test was applied it makes it really most unlikely that there is any substantial alteration of the law on that aspect. It certainly never is a question of strict liability. It is not an absolute liability, which is what we really mean by strict liability. Although it is turned into a contract, with the conception of sale, we are still left with the conception of negligence and whether it was reasonably safe on any of these grounds, among others, which have to be considered by the court, when seeking to see whether liability can be attached to the manufacturer.
We have this difficulty again, and it is a right point to make, that the time that the doctor prescribed is the time that his state of knowledge must be considered—not the state of knowledge of hindsight when other things have happened which make it clear, as happened during the thalidomide case, that there were these side effects in certain cases which created these disastrous results.
What the learned Solicitor-General is criticising are the guidelines which have been laid down in subsection (2). I referred in my speech—I am not suggesting that the list is exhaustive—to the criteria to be considered. Surely the hon. and learned Gentleman is not going to say, "Reject this Bill" because of a niggling criticism of this kind?
If the hon. and learned Gentleman still thinks that it amounts to only a niggling objection, I would invite him to read HANSARD with a little more care tomorrow morning. This is not a question of altering one or two niggling objections. This Bill as drafted, however many amendments were made, would never be capable of being put right. That really is the trouble. This is the serious flaw in the Bill. If the retrospective clause were left in it would always lead thereafter to endless legal argument. One will have the concept of a sale, and therefore contract, and, applying that to it, these curious procedures by which the court has to look at this to decide whether the drug at the time was reasonably safe.
It might be convenient if I were to speak for a moment—because I was invited in terms to do so by the hon. Member for Stoke-on-Trent, South (Mr. Ashley)—on strict liability in the United States. Slightly fewer than half of the States in the United States of America have the strict liability provisions. I think four States are doubtful and something like 21 States have these strict liability provisions. But one has to emphasise that "strict liability" is a term of art. In this country "strict liability" means absolute liability. It means that there is an absolute right to recover in certain circumstances, and one of the most striking examples which every hon. Member knows concerns certain provisions under the Factories Act where, if there is a failure on the part of an employer to provide what is necessary in certain circumstances, there is absolute liability. It does not matter what blame may be attributed to others. That is what we mean by "strict liability" in England.
In the United States of America they have a different term of art. "Strict liability" there does not mean absolute liability in our meaning. It is right to refer to an extract from an article in the Defense Law Journal of last year. The author is a Mr. Munsey who is a very experienced lawyer and author and also associate general counsel to the Pharmaceutical Manufacturers' Association of Washington and associate general counsel to the Department of Health, Education and Welfare. In that article he sets out an extract from the Restatement of Torts which is really the great textbook in the United States on the law of tort. What it says about drugs will probably remove any doubt about it. It is the source of my information, and I do not have any more. That restatement of the law of tort says:
It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognisable risk. The seller of products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.
One has there the concept that if adequate or proper warning is given it is sufficient. That is to be distinguished from strict or absolute liability as we know it. That is why the comment that this is a Bill imposing strict liability upon the manufacturers is one which, when examined, cannot be maintained.
Am I to take it from those last comments of the hon. and learned Gentleman that there are a number of drugs in this country which do not bear a warning notice although comparable drugs in the United States do? If this Bill is passed, will it spread the campaign which I am conducting for more warnings to be put on drugs where there are possible side effects?
Perhaps I might leave that to my hon. Friend the Under-Secretary of State. In law, it is a matter of prudent foresight for any drug manufacturer. If the American system of strict liability, which is not ours, became law in this country—and I have looked at the authorities in the United States—I have no doubt that drug manufacturers would make sure that adequate warning was given. A prudent man would seek to see what was a sufficient defence in the United States and would start by being as firm as that.
Has the hon. and learned Gentleman consulted the Federal Food, Drugs and Cosmetics Act as amended in January 1972? It is an American publication which sets out what ought to be done with regard to the marketing of drugs.
I have referred the House to an article by an experienced author in the Defense Law Journal of 1972 which is later in time.
The Bill also provides for the provision of liability in respect of damage to unborn children. The point made by one of my hon. Friends earlier that this is limited only to the thalidomide children and that it should not be so limited met, I think, with general approval. It seems very strange that we should only provide this right to someone who was injured because his mother took a drug and that we should exclude the mother who was a perfectly innocent passenger in a car and who received injuries from which she became quadriplegic with the result that her child born six months later suffered from epilepsy, as happened in a well-known Australian case. The concept, if acceptable, should be across the board to all unborn children.
This is one of the advantages of today's discussion. But the real difficulty about how far and in what circumstances the right is to be given to unborn children is a matter which is now under discussion. Within a day or two of the appointment of the Royal Commission at the end of November, the Law Commission was also invited to consider the matter. We often hear how slowly Royal Commissions react. I pay a compliment to the Law Commission, which produced a report in a remarkably quick time. It was dated 19th January, the Commission having been asked to consider the matter at the end of November. It is a preliminary report and it says in the introduction:
We are publishing this working paper for general consultation.
It has acted very quickly, and one hopes that general consultation will be allowed to take place.
There are many issues which go far wider than damage to unborn children by reason of drugs or accidents. There is the very difficult and equally emotional problem of damage to children by attempts at abortion which will need the most careful consideration.
If one is to have any sort of concept of protection of or of giving rights to an unborn child, it cannot be just for one. The hon. Member for Carlisle says that we shall be able to extend the provisions of the Bill across the board in Committee. That cannot be done until proper consideration has been given to exceptional cases where the father beats up the mother or where the child is born grossly deformed after an attempt at a back street abortion. Many matters need to be considered before this right is given without further thought.
The hon. and learned Gentleman has paid a well deserved tribute to the Law Commission for its interim report. On the second page of the appendix he will find listed the American States which now allow recovery for pre-natal injuries. It is a long list. Since the hon. and learned Gentleman has referred to American practice in another aspect of the law, will he say why in this country we cannot do as well for children injured before birth as all the American States listed in his interim report appear to do?
It is unfair to say that we cannot do so well. The Law Commission has proved of invaluable assistance both to lawyers and to this House in the past. A number of Bills have been forged in that Department and often have gone through this House with little further amendment. One cannot jump into this off the deep end. These other aspects have to be considered. No doubt the Law Commission will consider further what provisions the American States have for the various exceptional cases that I have outlined. But if one tries to rush through a Bill, one finds that there are a number of people or occasions which are not covered and which lead not only to hardship but to endless litigation and difficulties later.
The House is not being asked to wait for years. The Law Commission moves very quickly. It may be that it will be able to produce an authoritative account and advise on this by midsummer or near that time. If so, that is an occasion on which this novel idea could be properly considered again and put into the right form in a Bill in which one would not have any risk of some curious and unfortunate consequences because we had not had time to think about it.
I heard the hon. and learned Gentleman's last few words with great interest. The summer, he said, would be the time to put it into a Bill properly. Does that mean that the Government will intitiate such legislation at that time?
If I said the summer was the time to put it into a Bill, I did not mean that. I thought that I said that the summer was the time to get help and advice. Certainly that is what I intended to say.
I hope very much that it will be the summer, but one cannot say. It is impossible to do so when dealing with a responsible body, such as the Law Commission, which is asking for the information to be made available to it as from 1st April. It depends on how much is made available and how many people may wish to put in supplementary reports.
If the Commission were able to report in the summer—this is a matter not only of law, but of concern to other bodies and one would expect it to be considered by other bodies over the summer—and if it were right and agreed that it should be so, no doubt it could be considered for inclusion in the Queen's Speech next year. That is not a very long delay when one is dealing with something as vital as this.
Would the Solicitor-General agree that if there is some difficulty in getting things moving, it might be a good idea if he gave a guarantee that the Law Commission would move as quickly as the present Lord Chancellor—and presumably other Ministers—wants to move to change the bankruptcy law, especially in respect of the Poulson case? If we could get that guarantee, we could be pretty certain that it would move fairly quickly.
I cannot give any guarantee for the Law Commission and no one would expect me to do so. However, it was asked in November and it produced its report on 19th January and that experience does not indicate to me, and I hope that it does not indicate to anyone else in the House, that the Law Commission has been tardy in any way.
Another difficulty about the clause is that it refers to sale. Indeed, this is the peg upon which the clause is fastened and upon which Clauses 1 and 2 depend. I did not know until last week that the supply of drugs under the National Health Service is not a sale, even when a prescription charge is paid, between the chemist and the customer or between the chemist and the Health Service executive council. Even though a prescription charge may be paid, in law the relationship is not that of a sale. There is a statutory relationship and the only sale that could arise would be a sale between the manufacturer and the Health Service, or the manufacturer and a wholesaler, or where a sale was a non-Health Service prescription, as to a private patient who did not have the benefit of a Health Service prescription.
There would thus be difficulty in that respect, particularly with retrospection. I quote the example cited by a number of hon. Members opposite. A wife may suffer from urticaria and she may say that her son suffers from urticaria but that she had not realised what effect penicillin would have the instant it was given to him—that if he got so much as a sniff of penicillin, he would come out with urticaria.
There might be a case against a hospital in a situation of that sort. If there were retrospection, the hospital would be able to say, perhaps as much as nine years later, for instance, that it could not remember from which of its five suppliers it got the penicillin. That would put the patient—the person intending to make the claim—in an impossible position in his efforts to go back to the manufacturer.
That is the result of mixing up contract and tort and sale. There is only one occasion in the sale, but thereafter there would be a chain, through the distributor, which would now be of enormous length for those who wished to delay or avoid responsibility, but it would plainly do no good to those wishing to claim.
Surely the Solicitor-General is raising difficulties that do not exist. The remedy is not drawn in contract only. It is a remedy against the drug manufacturer and so not depending on the sale, not depending on the contract.
I do not want to cross words too often with an old colleague, but to say that it is not drawn in contract at all when the whole thing is conditional upon a sale seems to make one live in fairyland.
I hesitated to interrupt my hon. and learned Friend before, as I was leaving that to others. He spoke about a line or chain of persons who might be involved in a claim. Would he say where he considers the Government would be when they had licensed a drug?
Not in this at all. Under the Bill, the only people who would be concerned would be the manufacturer, the seller and the distributor. One could have a little country doctor who would be absolutely horrified to realise what the consequences might be. I am sure that there must be some country doctors who prescribed thalidomide in 1960 and who, if the Bill went through as it stands, would be open to be sued for the whole amount instantly. They may be shocked if they read in the newspapers tomorrow what they will wish they had not read.
The Bill contains four entirely different aspects of changes to the law, because there is not only the attempt to impose strict liability on the drug manufacturers, but the retrospective element and the actuarial assessment and the important amendment to the Limitation Act. It would be much better to call it the Law of Tort (Miscellaneous Reforms) Bill than the Dangerous Drugs Bill, and one hon. Member has already said that the Short Title might not be altogether accurate. Indeed, it is no more than a Law of Tort Reform (Temporary Provisions) Bill for the reason not only that the Royal Commission is sitting and the Law Commission is dealing with the ante-natal injury situation, but because one has the important Limitation Act amendment being considered by the Law Reform Committee. It was asked to undertake that a little before Christmas and it hopes to report in the fairly near future.
We are left with the position that the House today is being invited to consider a Bill involving these numerous and far-reaching changes in the law when an experienced body has each of the proposals under consideration, experienced bodies which, with the exception of the Royal Commission, will be reporting in time for these matters to be considered again, when they may be properly looked at with the addition of that experienced advice instead of the House being in the dark, as now.
These are attractive propositions, but because they are attractive we must make absolutely certain that they are right. There is not sufficient evidence from the various reports now available, save perhaps on the Limitation Act, with one reservation that the Law Commission has made, to satisfy us that these various changes should go through in the form suggested. One of the difficulties about amending the Limitation Act is that stale claims come to light again. In a sense, this is rather like retrospection. One of the great difficulties about retrospection—a doctrine that has always been unattractive to Parliament over the centuries—is that there is suddenly created a liability for an act which at the time it was committed was perfectly lawful and proper.
One gets the position that not only is the individual concerned unable to order his affairs and work out what his liability may be at any time in the future but, from an insurance point of view, it becomes impossible because insurance cover for legal liability can be underwritten properly only where the liability can be defined clearly at the inception of the risk and in accordance with the law operating at that time, as it is that which determines what the risk is likely to be. If there were retrospection in the Bill, or if it ever became a habit in any way, it would mean that insurers would have no reserves set aside to deal with potential claims, even though they are under a duty to have those adequate reserves.
I shall not enter into a discussion on that, because the hon. and learned Gentleman knows that retrospection, when it comes to altering a liability in the way that the Bill does, would affect not only Distillers—and this is what I must emphasise again—but also chemists, country doctors and others who would wake up one morning and find themselves at risk for huge sums of money. Retrospection of that kind is wrong, and should never be passed by this House.
It would be easier for my hon. Friend to reconsider the retrospective provision in Clause 3 if the Government were to increase the £3 million fund for congenitally disabled children. The Government cannot say how many children will benefit from the £3 million. How can we judge the adequacy of the provision without knowing how many children will benefit? It would make my hon. Friend's task of reconsidering the provision for retrospection much easier if the Government were prepared to be more generous to those children who are already severely disabled.
That demonstrates the danger that I was seeking to explain. What we are being invited to do is to buy off retrospection. The doctrine is that retrospection should depend on whether the figure is £3 million or £5 million. Retrospection is a principle which should be applied, or not applied, according to proper requirements, and should not depend upon whether the fund is £3 million or £5 million. That shows the danger—willingness to go backwards in time and impose a liability which did not exist as a means of putting pressure upon the Government or upon Distillers. That is the danger of using the threat of a system which is contrary to the system of ordinary justice and our principles in this country.
If the Government feel that retrospection should not apply to others, they must meet their own responsibilities. We on this side of the House are not prepared to see the needs of severely disabled children neglected. They are being neglected now. A sum of £3 million is not nearly enough to meet the requirements of congenitally disabled children.
What is being suggested is that people who acted in accordance with the law should, if the Government will not act, be put at risk for huge claims against them—people such as the poor little country chemist and doctor.
The hon. Member for Stoke-on-Trent, South devoted part of his speech to the Bill, and part of it to wider issues. He raised one or two matters over which I feel bound to cross swords with him. He says that under the present system, in the absence of proof of negligence, no compensation can be granted. That is so. That is the system that we have had for many years. That is the system that is now under consideration by the Royal Commission. He says that we must change this wicked system which means that the poor person who injures himself through no fault of his own is unable to get compensation. Does that apply to those who go potholing, who climb mountains, who go down cliffs to collect gulls' nests, or to the drunk who falls through the doors of a pub, goes straight across the pavement and into the path of a motor car? They will all be covered if proof of negligence is not needed. Absolute liability must lead to absolute compensation. Apparently that is the doctrine that is being put forward. It is another example of the dangers that follow from making sweeping generalisations.
I must join issue with the hon. Gentleman on one matter. He said that the small man had little chance against the wealthy corporation, but that again is absolute nonsense. If somebody is unable himself to fight a big corporation, it means that he is almost certainly entitled to legal aid. If the big corporation wants to fight as far as the House of Lords, then, in the right case, legal aid will support the small man all the way along the line. No longer do we live in an age when the rich can deprive the poor of their rights in court.
Ever since the introduction of legal aid the position has been the other way. On many occasions now it is the speculative plaintiff granted legal aid who, with no proper case, is able to get his opponent, who is in no way responsible, into court and land him with his own costs. If anything, the argument goes the other way now.
How does the Solicitor-General account for the case history of the first thalidomide mothers asking for compensation? When they settled in 1968, they did so under duress. The threat was that unless they settled for the amount offered by Distillers, legal aid would be withdrawn.
I shall not go into that case because it would be wrong to do so.
Legal aid is granted to a plaintiff only where it is considered by the Legal Aid Committee—which has to consider applications—that there is a reasonable chance that he will succeed in his case. If that were not done, everybody—and there are an enormous number of people who love litigation—would seek to get legal aid if they could be sure that it would not cost them anything and that it did not matter whether they had a chance of winning.
There comes a stage in legal aid when although the chances of success may not be great—I am not speaking of the thalidomide case, but dealing with a hypothetical one—it has been worth starting the action to see how the defendants put their case and whether they appear to have a strong defence. They may have to disclose documents, and so on, and then an offer comes. It may be an offer which, in the view of the solicitors and barristers advising the plaintiff, is better than the likelihood of his succeeding in his action. If the plaintiff does not accept that advice, there is a duty upon his lawyers to report that fact to the Law Society for it to consider whether the legal aid certificate ought to be allowed to continue. That is how it works.
These are some of the difficulties. I have taken longer than I had intended, partly because there were some interventions, which I welcome. The motives of the Bill cannot for a moment be impugned. The Bill seeks to remedy various problems and disabilities related not only to thalidomide but to many other aspects. It is an excellent Bill for a general discussion but for the reasons I have given, because it has so many flaws, it should not in my view receive a Second Reading.
We have listened to a predictable lawyer's answer to our arguments. It was very good of the Solicitor-General not to impugn the motives of my hon. Friend the Member for Carlisle (Mr. Ron Lewis) and others who support the Bill, but what we would have liked him to do was to identify himself with the purposes of the Bill. Instead we had a display, on which I would have congratulated the hon. and learned Gentleman if it had not taken quite so long, of fascinating forensic sleight of hand.
Naturally enough a House composed largely of lay and not legal Members must try with some difficulty to follow through the labyrinth of his analysis of the drafting of the Bill. My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) assures me that many of the Solicitor-General's arguments are nonsense. Let lawyer argue with lawyer.
I want to get at the heart of his argument from a layman's point of view. As I listened to the Solicitor-General I began to feel as though 1 were in a kind of wonderland. I began to get the impression that the Bill was proposing a series of drastic innovations in our law which had never been contemplated in any other country, instead of being the normal practice in a large number of them.
The Solicitor-General makes such a meal of these modest reformist propositions that I am left with the impression, as I am sure the country will be, that if we have to wait for this Government to give us these essential law reforms we shall wait until the end of time—certainly beyond the end of this Parliament.
For example, I am not a lawyer but I would have to be a bigger fool than I am to be taken in by the Solicitor-General's elaborate explanation of strict liability. The point arose out of a defence by the representatives of the drug companies, sitting opposite, of the present law relating to negligence on the grounds that if we were to put a more exact liability on the drug companies we would kill all their innovation, all the essential developments for the good of the people they serve. Some of us said, "How come? The United States drug companies have been 'suffering' such strict liability and have been far more innovatory and successful than our own companies." It is in that context that the matter arose.
What is the answer of the Solicitor-General to our argument? "Oh", he says to my hon. Friend, "you have not got strict liability in the Bill." Of course we have not. We were using the phrase in the context of the American situation.
What we have got in the Bill is warranty, which is the essence of the American legislation too. I have here a cutting from the Washington Post of 14th December headed,
British Debate Aids Victims of Thalidomide.
It refers to what it calls "Member Lewis's reforming Bill." It says,
It provides that the maker, seller, or distributor of a drug for humans offers an implied warranty that his product is safe. This is roughly in line with the American law.
Has not the Solicitor-General spent a good deal of time at that Dispatch Box establishing that that is so? So where is the great innovation and risk in the major proposition of the Bill? It is no answer to the arguments we have advanced to say that strict liability in this country means something other than it does in the United States. Let him deal with the arguments we have put forward about whether the time has not come for us to catch up with the United States and have a similar tough provision for warranty.
Consider his point about the unborn child. It is said that we cannot rush into this, that we are being railroaded into dangerous new territories. Has this not been, as The Times pointed out in its leading article last month, a commonplace in many other countries, including the United States again and Australia? Of course it has wider implications, as The Times realised. The legal status of the foetus is a wider issue. Is the Solicitor-General telling us that it is impossible for us even to begin to contemplate legislation at this stage? As The Times put it,
In the context of the present Bill the provision can be welcomed without reservation.
The Solicitor-General said that the Royal Commission was looking at this and had not yet pronounced. Very well. What about that vital element in the Bill, and one which is of general application, the proposition that we should lay a duty on the judge dealing with a case involving damages to give weight to actuarial evidence? What does the hon. and learned Gentleman say about that? The Royal Commisison has pronounced upon it and in favour of a change in the law.
We are not, as the Solicitor-General seemed to imply, trying to move into strange new uncharted territory. What we are saying is that the time has come for us to proceed with certain reforms, already widely adopted in other countries and long overdue here. We say that the time has come. We have had the example of the treatment of the parents of the thalidomide children by Distillers. Anyone who mentions Distillers in the House is accused of being emotional. The Solicitor-General commented upon how dangerous it was of my hon. Friend the Member for Carlisle to introduce any emotion into his argument. When hon. Members opposite say that we must not have an emotional approach, what they are really saying is, "Please do not let us have any more talk about thalidomide. Let us be able to forget the case, sweep it under the carpet as though it is settled and do not reintroduce that emotive memory because it is too urgent a spur for action."
Of course the Bill is inspired by the thalidomide case, and it is none the worse for that. The long wrangle for justice would not have been necessary if all along the line the parents had not been intimidated by the present deficiencies of the law. The first group of 62 parents would not have been browbeaten into accepting derisory compensation if Distillers had not been prepared to fight a protracted legal battle to deny negligence.
The Solicitor-General, in claiming that there is now the same law for the rich and the poor, shows that he is not fit for the office he holds. He is not a defender of the equality of legal rights. If anybody pretends that there has ever been the semblance of equality of legal rights in the Distillers case it is because he wants to hide the truth and not because he does not know it. I believe that the Government want to hide the truth now.
The thalidomide case would probably still not be being argued if there had not been one rich man on the parents' side who could afford to take the risk of challenging Distillers. The first group of 62 parents would not have been browbeaten if the law had been been obscure about the right to recover compensation in respect of pre-natal injuries. They would not have been browbeaten if Mr. Justice Hinchcliffe had received actuarial advice in assessing the damages instead of operating the traditional "common sense
and experience "approach which, as the Law Commission has pointed out, lacks
any mathematical, actuarial, statistical or other scientific basis".
That is something we can change in this Bill on the findings of the Law Commision now to hand. If we do not change it we say, in effect, that our consciences are not uneasy about some of those cases and the previous settlements, that our consciences are not uneasy about the case of Richard Satherley, settled in 1968, where a lump sum payment of £12,800 was made to provide for the life-long needs of a boy with no arms. It would mean that our consciences are not uneasy about the case of Heather Clark, a little girl who got £20,000 to help her cope with a life without arms or legs, with spinal arthritis, growths under the nails, two jointless fingers coming from one shoulder and three from the other, and a whole list of other deformities. Those are the realities of the present law that have stirred us to action on this point so as to get actuarial evidence accepted.
In discussing the Bill it is important to get away from the illusion that the Distillers case is closed. The sordid saga of this wrangle with the parents, the company's devious efforts to discharge its moral responsibilities on the cheap, continues. Even now, when as a result of the pressure in the Press and of a crucial debate in Parliament, the company has been forced to make a bigger show of generosity, it has been only a reluctant and grudging gesture disguised as generosity. The so-called offer of £12 million of 13th December turned out not to be £12 million. As the Chancellor of the Exchequer pointed out, a substantial proportion of the cost of that so-called offer would have fallen on the general body of taxpayers.
Three and a half weeks later, on 6th January, Distillers issued a statement including a higher figure of £20 million. The newspaper headlines widely reported it as an offer. For instance, The Times of 6th January—
Distillers raise to £20 million compensation offer for thalidomide children.
The article says,
If the High Court and the parents accept the new offer the company would pay £2 million a year for 10 years into a charitable
trust fund…Britain's thalidomide children last night received a hugely increased compensation offer of nearly £22 million from Distillers.…
The simple fact is that no formal offer has yet been made. The Solicitor-General does not seem to be aware of it and I do not think he wants to be aware of it because he does not care. When the Bill was due to come before the House today I, like everybody else, assumed that all this Distillers argument was past history. I contacted one of the leading parents concerned, Mr. David Mason, and asked him how things stood. I found to my astonishment that this fanfare of trumpets in the newspapers has never yet been put to the parents in legal form.
I quote from the letter Mr. David Mason sent me dated 7th February:
With regard to the latest position from Distillers, I wrote to Sir Alexander McDonald last Monday, 5th February, pointing out in so many words that their offer which was increased from £5 million to £12 million over a period of twelve days was published immediately and why, therefore, have we still not received the formal £20 million offer. I also pointed out in my letter that with the height of public opinion with regard to the thalidomide issue it would appear to be in the interests of the Distillers Company to delay making the offer for as long as possible to allow public opinion to cool. I made the point to McDonald that, whilst I have remained silent since my return from Washington, I am extremely watchful of the situation and am well aware of the advantages to Distillers in the delay at a possible cost to the thalidomide children. I ended my letter by saying that unless I receive an assurance that the offer is nigh I would feel unable to maintain my silence. I have today received a letter from him saying that the offer is being prepared with all possible speed and that he hoped to make it available before the end of the month.
In my opinion they are stalling. I do not feel that it will be out before the end of the month and I further feel that the Sunday Times injunction case could have a bearing on the timing that they make this offer, depending upon the outcome and the wording of the judgment by the Appeal Court.
In other words, if The Sunday Times articles are silenced a new silence may fall on Distillers, too.
Our argument is that the Bill, whether or not it contains a retrospective clause—it has been acknowledged that this is not an essential part of the Bill—is directly and urgently relevant to the thalidomide cases as well as giving new safeguards in future cases.
The Solicitor-General advanced no arguments on the merits, purely on the drafting and legal points. He did not say that something should be done about the law as it affects the unborn child, that judges should take actuarial evidence into account, or that we should have the same type of warranty liability as America has. He did not say, "Give us time and we will produce our Bill." If that had been the argument, we would have listened.
But it has not been the argument, and I remind hon. Members opposite who tried to use the Royal Commission as a reason for delay, that the Prime Minister himself, when challenged by my right hon. Friend the Leader of the Opposition not to use the Royal Commission as an excuse for preventing Parliament from legislating in this matter, gave an assurance that it would not be used in that way. So the Royal Commission's appointment is irrelevant.
Of course the Bill is not perfect; of course we can improve it in Committee. But if we do not give the Bill a Second Reading today, I can tell hon. Members opposite one thing—we shall be bringing great comfort and relief to the Distillers Company because it will know that we have helped to sweep that awkward matter under the carpet once again, and we shall also have thrown away the chance to legislate on any of these matters for an indefinite period, even the points on which we have all the favourable evidence. We shall be denying ourselves the right to legislate.
That is why we say that we have had a general discussion but we want to proceed now into Committee to deal, as we can do quite easily, with the Solicitor-General's drafting points, alter certain things and emphases, and remove the retrospective clause, as I would wish to do. That is what we should do now if we really care. All the points made by hon. Members opposite have been Committee points. What we care about on this side is the compassion points and that is what we must legislate to achieve.
As all speakers in the debate have made clear, the Bill arises from the appalling tragedy of the thalidomide children. Because of the inevitable deep sympathy and horror with which we all regard that tragedy, and because of the way in which it has been kept alive in the Press, one is undoubtedly in danger, if one criticises the Bill, of being accused either of lacking sympathy or of having motivations which are in some cases and in some ways dishonourable. Indeed, I regret that the speech of the right hon. Member for Blackburn (Mrs. Castle) indicated that that was very much her line of approach, for she took the opportunity, wholly unjustified, to accuse my hon. and learned Friend the Solicitor-General of being unfit for his job because he did precisely the job of a Law Officer—to utter a caution where legal difficulties are likely to arise.
I am confident that no one would dissent from the proposition that the appalling difficulties of these children and of the many others who suffer disabilities, some as severe, ought to be compensated, if that is the right word, or at any rate alleviated by as much effort and care as society can give them. This seems to me to be entirely irrespective of whether there is some traceable cause and some person who may or may not be blameworthy.
I do not want to raise legal points which have been thrashed out adequately already, but my first reservation, rather than criticism, concerns the introduction of the new concept of a right of action following pre-natal damage. I only say it as a reservation, not just because it is new but because one does not have to have very much imagination to realise that this could have very considerable ramifications which a body such as the Law Commission is infinitely more able to study in depth and to consider and report upon than any of us in this House can possibly be.
There is, too, a very curious concept of justice in the Bill, because, when all is said and done, women do prescribe for themselves from time to time and doctors misdiagnose and sometimes give drugs for symptoms which may be entirely consistent with the complaint with which the drug is supposed to deal but which nevertheless may be complicated by the existence of some other disease or by the interaction with some other drug. It seems a curious conception of justice that liability goes straight back to the distributor or the manufacturer with no defence at all that the condition may have been brought about very largely by carelessness, neglect or even a lack of knowledge by an intermediary, such as the doctor, the patient, or a member of the patient's family.
It is true that where there is a misdiagnosis there may be a defence that the drug was not being used for the purpose for which it was intended, but such a defence would by no means necessarily be effective because the damage might arise from interaction with other drugs or because the patient has some secondary complaint. As I tried to put before the House in my intervention in the speech of my hon. Friend the Member for Surbiton (Mr. Nigel Fisher), and as is abundantly confirmed by my hon. Friend the Member for Reading (Dr. Vaughan), a very large number of ordinary drugs used and prescribed daily can, in certain circumstances, on certain people, have very damaging side effects and can, indeed, be fatal. I hope that my hon. Friend the Member for Reading will catch your eye, Mr. Speaker. Even the contraceptive pill—known as the Pill—I understand in about one case in 2 million can produce coronary trouble, and so on. It seems to me that where a drug of this nature is taken where there is full knowledge of the risk, slight or otherwise, that should constitute an absolute defence.
Reliance is put on the concept of the American Food and Drugs Administration, but as far as I know no one has suggested that the fact that a drug is passed by a licensing authority of that type—whether it be the American one or our own present system—is necessarily a defence. This matter needs looking at very carefully. I do not think that I am at cross-purposes with the promoters of the Bill in saying that there must be, to give rise to liability, some element of negligence.
I thought that the hon. Member for Stoke-on-Trent, South (Mr. Ashley) got a little at cross-purposes about the difference between strict and absolute liability. Although he was using the term, "strict liability", it is clear from what the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) said that the Bill does not intend to pro- vide an absolute liability. There is a definition in Clause 1 (2) which in a sense outlines a fairly broad concept of negligence. In other words, I think that if one does not get into that particular haven one is likely to be negligent, although no doubt it narrows one's chances of defence, so to speak, considerably over the existing law.
But there is a degree of negligence envisaged in this Bill. It seems that the only valid test can be whether the drug, before being put on the market, had been tested to the highest possible standard in the light of knowledge at that time. I cannot believe that we do very much good by raking round and finding some other tests and other matters to be taken into account when that must be the absolute basis of the argument. My dislike of the Bill, without disliking in any way the motives or the aspirations of its sponsors, is that it does not make it abundantly clear that the question of testing is the right criterion by which we should judge whether people are liable.
That brings me to the background against which the campaign, and the Press campaign in particular—on which the hon. Member for Carlisle (Mr. Ron Lewis) congratulated The Sunday Times—needs a good deal of further consideration. Let there be no doubt that in the last few months we have seen a trial by newspaper. That is a very dangerous concept. One's mind almost boggles at the possibilities of similar campaigns against citizens, whether they be individuals or companies, and the building up of public opinion to pressurise them to take some action which appears to be right but which may well be founded on inadequate knowledge of the facts and may well be wholly unjustified.
There is no evidence, and certainly no adjudication, that Distillers, or its German suppliers, did not test the drug to the highest standard known at the time. We do not know what tests the German firm carried out. We do not know whether they would be regarded by the most eminent medical and scientific opinion as being the most stringent tests suitable within the light of knowledge at the time. We do not know whether Distillers inquired about the tests and sought to ensure that they were adequate and that they had been thoroughly carried out. It is a great pity that throughout this debate we have lacked knowledge whether Distillers was negligent.
I should be the first to admit that it is, to some extent, Distillers' fault. Should we not consider the possibility, even now, at this late hour, of putting the matter to the Committee on the Safety of Drugs and asking it to give an opinion whether, in the light of the knowledge at the time, there is even prima facie evidence that this was a negligent operation? It would clarify everybody's mind a great deal if we knew.
The hon. Member for Stoke-on-Trent, South wrote a letter to The Times on 17th January. I am sorry that the hon. Gentleman is not here but he said that he was coming back to the Chamber. He started by saying,
I am interested in the thalidomide campaign which has just started—the new one advancing the case for Distillers".
I shall not bother the House with the whole of the letter which, in effect, implies that the counter campaign was based on the supposition that I have been putting forward, that there has been no evidence of negligence in the ordinary sense against Distillers. The hon. Gentleman, referring to Professor Strang's report, said:
Has he studied the basic facts of the testing and acceptance of thalidomide by Distillers? When the Sunday Times attempted to publish an article setting out these facts the editor felt the heavy hand of the Attorney-General on his shoulder. The Lord Chief Justice, who ordered that it would be contempt to publish it, said: 'No one reading the article could fail to gain the impression that the case against Distillers was a substantial one'".
The hon. Gentleman continues:
How can it be argued that under these circumstances the company is being made a scapegoat?
It is not surprising that the Lord Chief Justice should make a comment of that sort. There is no doubt about it that it was the intention of the writer of that article to convey that impression. I do not imagine that there is one hon. Member, one journalist or one advocate who has not from time to time employed the technique of putting into his speeches and arguments the argument that supports the aim to which he is directing their arguments and leaving out those that do not.
That is precisely what has been going on in The Sunday Times throughout the whole of the discussion. The Lord Chief Justice's view that this was something which would be prejudicial was a feeling that he almost inevitably was going to be led to by the whole nature of journalism. What worries me is that journalists, with the best will in the world, do not have the facilities or the opportunities, in a matter of this sort, to find precisely where all the evidence lies, let alone to collect it, evaluate it and make a fair assessment of the result. I do not believe that there is a reputable journalist who would deny that or claim that he has those facilities.
The other great problem is that the investigation which the "Insight" team has carried out has, by its very nature, been done in secret. It does not take much imagination for us to imagine what The Sunday Times would say if we suggested that there should be a secret investigation into Distillers, and it would be right. The whole basis of our system of justice is that it is held in public so that the public should be able to ensure that all the evidence is examined and assessed and that there is an opportunity to counter one piece of evidence with another. Even so, I suggest that if the Government were rash enough, which I know they would not be, to appoint a secret inquiry or the courts were rash enough to hold an eventual hearing of the Distillers case in camera, it would be very distasteful—but it would be much less dangerous with a judge of the High Court or, in the case of an inquiry, a man of national reputation appointed as chairman than it is when carried on in a newspaper, often by journalists who have none of that reputation and none of that skill.
I do not know how many hon. Members have been subject to an attack by The Sunday Times "Insight" team. There is nothing worse than boring one's friends with one's own experiences, but I think in this case it will be useful to relate my own experience, and I venture to bore the House with it. During the Rolls-Royce crisis the Sunday Times published a definite statement that they understood, from the most absolutely reliable source, that I had given a personal undertaking to the then Under-Secretary of State for Defence in the United States, whose name escapes me, that the British Government would willy-nilly go on with the RB211 engine at a very early stage. It so happened that I had made no decision of the sort at that time. I knew no member of the American administration. I had spoken to no member of the American administration, except the Secretary of State for Transport, whom I had given a personal welcome at Heathrow. We discussed security following the Leila Khaled hijacking incident. I had never telephoned or in any other way communicated with that gentleman or any of his colleagues.
However, I contacted the editor of The Sunday Times and said, "This is wholly untrue", only to find that exactly the same statement was published the following week—that it had it on the best of authority. Eventually this man—I was tempted to say "gentleman"—came to see me in my office. He said, "But this came from a highly reliable source." What he was doing was accepting secondhand information—it was probably third or fourth hand—in preference to the firsthand information which I had given him and which could easily have been checked with the American Minister concerned.
That is the sort of danger which arises from campaigns of this sort. Only yesterday I was talking to a colleague in the House who had been subject to one of these interviews—
I am not necessarily implying that. I am emphasising the importance of not accepting as evidence which would condemn or otherwise the Distillers Company something which appears in such articles.
I spoke to a colleague yesterday—and here I am guilty of giving second-hand evidence myself—who had been subject to an interview by the "Insight" team. He assured me that he knew of a large number of people who had been telephoned and asked for their views on this topic and who had given an account of the relevant facts which did not tie in with the theme of the story which the team wrote. However, their versions of the facts were not mentioned and were given no credence.
I mention this matter only because I feel that we are very unwise to accept without question much that has appeared in The Sunday Times as if it were the truth and to condemn the actions of the Distillers Company, which has been attacked, without knowing the full facts. I do not pretend to know the facts about Distillers—
I do not think that that is so. It is important that we should realise the limitations of a newspaper article. I was specifically directing myself to the letter of the hon. Member for Stoke-on-Trent, South, who seemed to accept that the article was evidence of negligence. That it cannot be.
I do not pretend to know enough about what went on or the tests which the Distillers Company carried out to judge whether it has been negligent or even dishonourable. Without going back on those words, I think that it is fair to say that it has been unwise or perhaps badly advised to make offers in respect of which it insisted on 100 per cent. acceptance. It may be—I do not dissent from this view—that The Sunday Times campaign has brought this matter before the House earlier and more urgently than might otherwise have been the case. But it has blackened the name of the Distillers Company and pilloried its chairman in a way for which there may be, and almost certainly is, very little justification. There is no evidence that Distillers was negligent and no evidence that it acted dishonourably.
The House prides itself on its right to decide, in framing law, what are proper commercial practices. It jealously guards the right of the courts independently to administer that law. It is a thousand pities that some hon. Members associated themselves with the Press campaign.
The House was sorry to hear of the difficulties between the right hon. and learned Member for Gloucestershire, South (Sir F. Corfield) and The Sunday Times. He widened the debate by referring to the RB211. I thought that he would begin discussing the TSR2 at any moment. The right hon. and learned Gentleman was critical not only of the Bill but of Distillers. However much he may dislike the Bill, I believe that if he and I were to sit down at a table together—and this is no disrespect to other hon. Members—I am sure that by amendment, addition and subtraction we could agree on a Bill to be reported to the House which would do some good and no harm. I hope that that view is shared by other hon. Members.
Some hon. Gentlemen have declared their interest, some have not. It is known in the House that I am a parliamentary adviser to the Council of the Pharmaceutical Society. However, the comments I wish to make are entirely mine. I say that in case anyone should think that, because I have a financial interest in a profession associated with this subject, I am speaking for that profession. It is also known that I am a sponsored Member of the National Union of Mineworkers. It is the union's opinion that the Bill would, indirectly, be of great help in pneumoconiosis cases. I do not think that it would, but I speak not for the union but for myself. Anyone in the House who is interested in the subject of medicines has contact with or receives information from the Association of British Pharmaceutical Industry. I have contacts with ABPI and I have advice and information from ABPI. But I do not speak for that organisation. These comments are entirely mine. I say that so that nobody outside will be blamed for something that I may say.
I join those who have congratulated my hon. Friend the Member for Carlisle (Mr. Ron Lewis) on using his luck in the ballot to introduce the Bill. Its first target is the Distillers Company, which, unfortunately, as the right hon. and learned Member for Gloucestershire, South conceded, believed that its responsibility lay within the strict liability of law and not within the wider implications of its responsibilities. That company has now been persuaded by the Press, public, Parliament and the principal shareholders that it should take a much wider view of its responsibilities than the question of strict legal liability.
Shareholders have come into their own. Not only the drug industry but a number of parts of the Stock Exchange will never be the same again. There may well be people investing in companies who should take a greater interest in company policies rather than pull out of their investments. That applies to trade unionists. If some trade unions and trade unionists were to take shares in their companies they could at least go to the annual general meeting and have their say. The whole industrial scene will, after this Distillers operation, be different from what it was before.
I am sure that no hon. Member opposes the aims and intentions of the Bill. Very few people outside would do so. My hon. Friend the Member for Carlisle, in his moving speech, said that every child borne deformed should have greater help than he receives today. I think that he and other hon. Members would go further and would say that every man, woman and child disabled in any way, from whatever cause, should have the fullest possible help. This is perhaps a weakness in the Bill. One can do only so much good at a time in legislation, but in so much of our legislation the benefits are linked to the cause of injury or disability and not to the fact that there is disability.
The question is whether or not the aims of the Bill can be achieved by the Bill, or by this Bill if amended and put in another form, or whether we need a new Bill, if this Bill is beyond redemption. That is the question before the House. There are two Bills in this one Bill. Clauses 1 to 5 are about damages and compensation. Clauses 6, 7 and 8 are amendments to the Chronically Sick and Disabled Persons Act 1970. With Clauses 6 and 8 no one would disagree, and I would hope that we would give this Bill a Second Reading for the sake of those clauses. There are in fact two Bills here and the debate has been essentially about Clauses 1 to 5.
There is no doubt that this Bill has a tragic and emotional background, no doubt emotionalism has to be controlled, no doubt the Solicitor-General was right when he quoted a northern saying that hard cases make bad laws. I am sure that neither he nor I take that phrase to mean any disrespect to those involved in the tragedy of thalidomide, but it remains a fact that while we feel with our hearts we have, in dealing with legislation, to think with our heads. I would agree with the Solicitor-General on that point at least.
I do not want the debate to become a cops and robbers affair, as though all the good lay on this side of the House and all the bad on the other, as though it were an argument between those who favour help for the thalidomides and those who do not; between those who attack or defend the drug industry; or use the Bill as a stick to beat the drug industry. There is no intention of that. We come to this House bringing some knowledge and experience and say so openly and honestly. So what we are talking about is how we can help, and some of the objections to some of the proposals.
My hon. Friend the Member for Carlisle spoke of high standards and the greatest possible protection for the public. He said, rather disarmingly, that this is a simple Bill, limited in scope, as it is, and that it is a small Bill. He said that any questions about its actual contents he would pass on to my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) who would deal with the legal niceties. We have heard of some of the "legal niceties" today. In fact it is a very wide Bill indeed and has very wide implications.
If I concentrate more on my doubts than upon my support for the Bill that is natural in debate in the House about legislation. I think the very Title itself, as my hon. and learned Friend the Member for Stoke Newington and Hackney, North accepted, is misleading. "Dangerous drugs" in this Title has a very different meaning from the same phrase in the Dangerous Drugs Act 1965. I think that the Solicitor-General would bear that out. The phrase "dangerous drugs" as so often before used has meant opium, cocaine, heroin, LSD—dangerous addictive drugs. The kinds of dangerous drugs referred to in the 1967 Act were LSD and heroin, and drug pushers and drug addicts were also covered.
Here "dangerous drugs" can be substances of almost any kind, medicinal products of any kind, not necessarily on the Poisons List or the free list or the free sale list. This means dangerous sub- stances of almost any kind. As the right hon. and learned Member for Gloucestershire, South said, water, wrongly used, can be dangerous. So can tea, whisky, or almost any substance. The principle in this Bill is that if someone uses what is normally safe and then finds that it is dangerous as so used there is liability—if he uses a substance thought to be intrinsically safe until it is proved otherwise. Thus the Bill goes very wide indeed, and if that principle had been carried through other legislation there would have been some remarkable effects.
The Bill is not limited to the protection of disabled children. It applies to people of all ages. Without going into the realms of tort and other flatters, one can say that it is really a damages and compensation Bill.
Clause 1 was criticised because it applies only to "sale". It may be that the Under-Secretary of State can comment on this. If the words were "sale or supply" in subsection (1), would the phrase cover some of the objections and limitations pointed out by the Solicitor-General? Would it be better if the clause were to apply to anyone who handed out, passed on, distributed in any way, the offending product without there necessarily being any financial transaction? I mean by the mere passage of goods or products from one to another.
Clause 1 talks of
a warranty that it is reasonably safe".
I come to the criteria in subsection (2). I am always doubtful about criteria being laid out in a Bill for it seems to me that they could be limiting, and other matters may need to be specifically borne in mind in assessing damages. There has to be sufficient cover, and it would seem to me that in addition to subsection (2)(a) to (d) there should be a paragraph (e)," or other relevant factors", just as in the Queen's Speech there is always the sentence.
Other measures will be laid before you.
That gives overall cover. There should be sufficient criteria to deal with matters beyond what is specifically spelt out so that the criteria will not be limiting.
I have some questions on Clause 1. Would the manufacturer, wholesaler, distributor, retailer or dispenser, or, if an amendment were made, perhaps a doctor, be covered or able to avoid any penalties
under the clause if he were able to show he had given prior warning? Packets of cigarettes now carry the warning:
Warning by H.M. Govt. Smoking can damage your health.
Would that kind of warning on any packet or prescription provide cover so as to avoid liability? It is not unknown that, after 12 years in the coal mines, I carry with me a little bottle of "Spare breath"—isoprenaline forte. It carries a warning that it is dangerous to exceed the recommended dose. Would that kind of label enable a manufacturer or supplier to avoid any penalties which might be incurred under Clause 1? And would we have to carry that caution to tea, aspirin, whisky—all of which can be fairly potent on occasions?
Clause 2 needs clarification. I think I know what it means, but I am not certain that it means what the sponsors think it means. Should not the medical practitioner be included? It is not a fair share of responsibility to say that because a medical practitioner has a contract with the Secretary of State his responsibilities can be passed to the Secretary of State, whereas all other people's responsibilities are placed upon them. In justice and equity, the doctor is part of the whole process and should not be reluctant to accept a share of responsibility.
We have enough arguments this afternoon without bringing in the salaried service.
The more complicated are the drugs and the more preventive drugs we have—for contraception or whatever—the longer the period of time which elapses before we can decide whether a drug is safe. Even then, there is no guarantee.
Clause 3, the retrospective clause, raises grave doubts. It is aimed directly at the Distillers Company. There has been talk of horse-trading—if the Government increase the fund to £5 million, or if the Distillers Company makes a better offer we might withdraw the retrospective clause. I have no power to say whether "we" are the sponsors of the Bill. If the retrospective clause is withdrawn, what happens if in 20 years' time a drug which is now thought to be safe is found not to be safe? Is the Bill intended only to help thalido- mide children now, or is it an insurance for the future? Is insurance for the future to take priority over possible present difficulties? We cannot have it both ways.
We have to decide whether the retrospective clause stays in as an insurance for the future, or whether it is withdrawn now.
The National Union of Mineworkers thinks that the clause could apply to pneumoconiosis sufferers. I have grave doubts. My objection to retrospection is on the same grounds as that of any other hon. Member, namely, that if I do something right and lawful now, it is wrong that in 5, 10, or 20 years' time someone should decide retrospectively that what I did then was wrong. The law is now. We obey it or break it now, in 1973, and retrospective penalties should not be introduced.
In Clause 4 the assessment of damages is based on the making good of any financial loss or expenses incurred. My personal experience suggests that something should be added to that. It should not be a case merely of damages for financial loss or expenses incurred. There should be some financial contribution towards pain, frustration, anguish, mental torment or despair. Those feelings cannot be caged or quantified but they should be taken into account by those who assess damage. Damages should be awarded over a wide field and not a narrow one.
Compensation and responsibilities have been mentioned. The Bill is not designed to attack the Distillers Company directly. It is not a matter of argument for or against nationalisation of the drug industry. It has nothing to do with hon. Members attacking or defending the drug industry.
As I may have incurred some unpopularity, I might as well go the whole hog and say something good about thalidomide. To keep a balanced debate, we should put on record that thalidomide has done many people a great deal of good. It has been superseded in its original purpose. Tragic as its effects have been for some people—and we cannot overestimate that—many people have been helped by using thalidomide. It is possible that a derivative of thalidomide may be of great value in kidney and heart transplants in the not-too-distant future. It is not wholly a negative drug. It has possibilities. Overall, it might have been better if it had not been discovered, because the harm it has done qualitatively has been much greater than the good, but some good should come out of it.
The Association of British Pharmaceutical Industry has raised three matters. The association refers to the discouragement to research which might result from the Bill. I take that to mean that the drug industry collectively would play it safe. There would be no reluctance to take a risk. If there were a risk the industry would be more likely not to take it. It would be foolish to say that the manufacturers should take more risks than they think they should, but the effect might be to restrict research.
The hon. Member for Canterbury (Mr. Crouch) said that there was a possibility of research and development not in America but much nearer. I hope that no one tries to make this debate into a pro- or anti-Common Market debate because in the near future I hope we shall have common policies throughout the EEC for both the pharmaceutical profession and the pharmaceutical industry.
My last point is the question of strict liability in law. I thought that from the brief given to me by the ABPI no United States federal legislation was involved. The doctrine of strict liability as applied to drugs closely resembles negligence, according to the ABPI. It seems that between the two arguments—in the one case from my right hon. Friend the Member for Blackburn (Mrs. Castle) and, in the other, from hon. Members opposite—something of use could come from the American scene. But it is no use my right hon. Friend the Member for Blackburn saying, "It is not doing any harm in America and, therefore, why not do it here?" and hon. Members opposite saying that we should not do exactly as is done in America. It is a matter which would have to be sorted out very carefully in Committee.
The sponsors time and time again have repeated their undertaking to consider amendments. I have never known a Bill which has been brought before the House the sponsors of which were so anxious to encourage amendments and to give assurances that they would consider amendments seriously. Of course, that is wholly right. The Solicitor-General said that there were many shortcomings and imperfections in the Bill. Certainly there are, but I cannot agree with his optimistic assumption that the law in this country is available equally to rich and poor. He ought to look at what he said when it is published in HANSARD tomorrow.
One constituent of mine is in prison on remand. His friend, on the same charge, was able to make an application to a judge in chambers and is now free. This is no reflection on the police or the bench. The difference between the two is that one had to go through the process of applying for legal aid. The other had £150 and was able to go before a judge in chambers.
I have no doubt. He is doing that at the moment. The point is that the man with £150 was out three weeks ago.
I have another example. I have pending a claim for damages against a local authority for injuries suffered by my sons. I have been able to obtain the excellent services of solicitors and I have been able to retain those services for three years while the case is in preparation. The solicitors do not know my income but they trust me because it is thought that I could meet the costs if I should lose the case. The man who has no possibility of raising the money to meet those costs could not get the kind of service that I have had in this case. If hon. Members do not believe me, let them ask the hon. Member for Worcestershire, South (Sir G. Nabarro) who said "the law is there if you can pay for it." It is like the Ritz being available to us all.
I am grateful to the hon. Gentleman for allowing me to intervene again. The comment made by my hon. Friend the Member for Worcestershire, South (Sir G. Nabarro) was one that I read and totally disagreed with. May I say that members of the Bar do legal aid work in civil cases. They are paid a fee that is agreed by the authorities less 10 per cent. In criminal cases the fees are agreed by the courts. There are nowadays very few cases in which any sort of distinction is drawn. The service that I have seen, during my experience at the Bar, given to somebody on legal aid as opposed to somebody paying privately shows that the distinction is non-existent. In some cases one does not know whether one has a private client or a client who is receiving legal aid. What the hon. Member for Worcestershire, South said is quite contrary to my experience.
I would agree with something of what the hon. and learned Member said. I do not suggest that one gets better service from a solicitor or a barrister because one can pay him, or that one gets better advice by going to the highest and most expensive barristers and QCs than one would with a court brief. All I say is that it is easier to go to law if one has money, just as one is able to have surgical operation more quickly if one has money. Regardless of anything that the hon. and learned Gentleman says, money still talks, at least in regard to time and facilities.
I want to see the achievement of some of the aims of the Bill. With all its imperfections of drafting, of intention and the rest, it would be possible in Committee to amend it, to add to it, to take away from it and to bring it back on Report for further consideration, with a decision being taken on Third Reading to pass it this Session or to defeat it. However, I hope that the Government will not by some procedural device so arrange matters that the Bill is not decided openly and honestly.
We have to get further than we are at present so that compensation, damages and help are directly related to the disability and not to the cause of disability.
I agree wholeheartedly with the concluding remarks of the hon. Member for Liverpool, West Derby (Mr. Ogden) that compensation should be directed to the disability and not to the cause of it. I feel that that is one of the weaknesses of the Bill. However, I welcome this debate because there cannot be a Member of this House or a member of the public at large who is not in sympathy with the aims of the Bill. We all want to prevent any repetition of the ghastly thalidomide tragedy and to compensate the victims should such an event occur again. However, in seeking to do that we must not draw the terms of the Bill so wide that we imperil others or so narrow that we exclude many who should be included.
Unfortunately the right hon. Member for Blackburn (Mrs. Castle) is no longer present. I cannot believe that she listened to what my hon. and learned Friend the Solicitor-General said. In the right hon. Lady's view my hon. and learned Friend ought to have said, "Yes we will do something". But that is exactly what my hon. and learned Friend said. However, the "something" will be carefully considered before it is introduced. Nothing does more harm than bringing forward a piece of legislation which is not properly digested and, regardless of the persuasive words of the hon. Member for West Derby, I do not believe that the Bill is capable of being licked into shape so that it is capable of being enforced and doing the job that he wants.
I am not a director of a drug company, but I am deeply concerned about the well-being of the disabled and about the health of the nation. Indeed, that was my main reason for wishing to come to this House.
The hon. Member for Stoke-on-Trent, South (Mr. Ashley) said that the Bill arose directly from the tragedy of thalidomide. However, that again is the Bill's weakness. It was drawn up in haste to cope with a thalidomide-type situation.
Today's debate has been immensely valuable in clarifying the position and putting it in the wider perspective of all the disabled. The hon. Member for Carlisle (Mr. Ron Lewis) said that every child born deformed should have greater security by Act of Parliament. I agree completely. Unfortunately, the Bill does not achieve that. Many people are left out. I give only three brief examples. The Law Commission recommended firmly in its report published in January that babies injured before birth by brutal attacks on their mothers should be included. They are left out. It recommended that children injured by pre-natal car accidents should be included. They are left out. It recommended that children damaged by the wilful act of an unsuccessful abortion should be included. They have no redress under the Bill.
What especially concerns me is the harm that may be done to countless people who may suffer pain or death because of treatment being withheld in case some side effects may occur. One should not quote one's own family circumstances, but my husband was seriously ill in Egypt many years ago. He was saved by a drug which could have an effect on the heart. In his case it did not have that effect. If it had not been tried, he would not have been alive today. That is the sort of thing that I am worried about.
The hon. Member for Carlisle asked us to put ourselves in the position of the parents of a thalidomide child, but what about the parents of a child suffering from a disease that I have always believed to be particularly horrific, leukaemia, who see the child's only chance of a longer remission, or of possibly eventual life, in the trying of a new drug? What about adults themselves, suffering from some obscure disease, whose only hope is in a new drug, adults capable of taking decisions themselves and of pressing a doctor to try a drug? Would such an adult get treatment, his only hope and chance of a remission of pain and possibly of life?
My long-term aim is similar to that no doubt of the hon. Member for Carlisle and certainly that of the hon. Member for Stoke-on-Trent, South. It is that the Government will introduce a full disability income for anyone who is disabled, and I mean whether disabled by drugs or not, at birth or not, whatever the cause. In the meanwhile, I am greatly heartened by the assurance of the Solicitor-General that the whole problem is being thoroughly examined and that when the investigation is complete, we may reasonably hope that well-considered, expertly drafted legislation will be introduced in the not too distant future.
Although I deeply sympathise with those bringing in the Bill, after what we have heard of its legal implications and damaging effect on the very thalidomide children it was intended to help, I cannot support it, and I rely on my right hon. Friends to bring in legislation in the near future.
This is an important and urgently necessary Bill. I pay warm tribute to my hon. Friend the Member for Carlisle (Mr. Ron Lewis). The House as a whole recognises his unfailing modesty, kindliness and deep concern for all disabled children.
The debate has been marked by a number of deeply moving speeches from my hon. Friends. The Bill is the product of much co-operative effort among hon. Members. My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) has been rightly praised for the highly skilled and detailed contribution that he has made to the drafting of the Bill. Moreover, the Bill has rightly attracted support from hon. Members on both sides of the House.
We have heard from hon. Members who have declared their interest as directors of drug companies and from more than one distinguished lawyer. It would not have been possible for a parent of a severely disabled child to have spoken with the restraint that was shown by a number of hon. Members. The Bill originated in the campaign for a just settlement of the anguished and often angry controversy over thalidomide. The thalidomide tragedy highlighted and dramatised the need for legislation in a pitiable and horrifying way. The campaign caught the public imagination as other, less successful, campaigns have not.
The improving prospect of a settlement of the claim of the thalidomide children is, however, irrelevant to whether the Bill should now go forward. Thalidomide was not the first drug tragedy and it will not, I fear, be the last. The Bill meets important social needs and ought not to be defeated, or materially changed, by reason of the apparent success of the campaign in which it originated. The Bill goes beyond its origins, and in my view it is entitled to survive them.
Nor does the Royal Commission on Civil Liability, announced by the Prime Minister on 19th December last, in any way diminish the need for the Bill. As my right hon. Friend the Leader of the Opposition strongly emphasised immediately after the Prime Minister made his announcement, the Royal Commission must not prejudice the right to initiate and enact legislation dealing with what are urgent and immediate problems. The Royal Commission may not report for two or three years. There would then be a further lengthy delay before legislation enacting its recommendations could become law. The choice is between a pigeon-hole and purposeful action.
I am sure that the House will be interested to learn the view taken of the Royal Commission by the Central Council for the Disabled. The CCD said in a recent statement:
The terms of reference are disappointing.…It is to be hoped that the Commission will go wide and not stick too closely to its terms of reference.…It is noteworthy that New Zealand has recently introduced comprehensive legislation on compensation.
The Solicitor-General must not object if many people in many organisations working to help severely disabled children see the Royal Commission as a delaying tactic. He will at least acknowledge that the CCD's criticism of the terms of reference is a sharp one.
The House may also be interested to know the viewpoint of the Director of Action for the Crippled Child, Mr. Duncan Guthrie. In supporting the Bill he said:
There is a danger that…a heaven-sent opportunity for a piece of major social reform may be lost, or delayed for a great many years.…The child born with birth defects is at the very bottom of the social welfare scale. A lifetime of handicap, poverty and third-class citizenship lies ahead. This Bill, strengthened at the Committee Stage, could do much to redress this cruel imbalance.
I hope that the words of Mr. Guthrie will be weighed very carefully by right hon. and hon. Members on both sides of the House.
The Solicitor-General made a remarkable speech. Shall I compare him with a winter's day? Why was he not more fair? He quoted practice in the United States where it helped his case, but he said much too little about United States' practice where it sustained the case for the Bill.
The Solicitor-General made a great point about the wording of Clauses 1 and 2. He said that Clauses 1 and 2 are based on contract and that difficulty would arise because, for example, the National Health Service does not sell goods and that there cannot, therefore, be a contract. I am advised by a distinguished legal authority that this difficulty can be met by simple amendments in Committee to Clause 2. In line 2 of subsection (1) after "sold" we could add "or supplied" and in line 8 after "immediate purchaser" we could add "or immediate supplier".
My advice is that the Solicitor-General has made something of a mountain out of a molehill. I am certain that the collective wisdom of this House could meet the point which he both lengthily and repeated raised in his speech. Further, his argument about the appointment of the Royal Commission can be used the other way round, in support of the Bill. The Bill is a necessary first attempt or holding operation. The Royal Commission is ready-made to put things right if this measure proves to have any of the serious imperfections which the hon. and learned Gentleman claims for it. Most of his criticism was directed to the point that it does not go far enough. That is a strong reason for giving it a Second Reading and improving it in Committee.
I said that the Bill is urgently necessary. We must now deal with the current state of the law which has been seen to operate unfairly towards the gravely injured, including gravely injured children. The Bill is fully justified on this ground alone.
The hon. Member asserts that the law has been seen to operate unfairly. How can he possibly say that when the issue is before the court and no one knows what the answer will be?
He would be a very unrepresentative Member of this House who argued against the view of nine out of 10 of the British people that the thalidomide children have been unfairly treated. The hon. and learned Gentleman will appreciate that there is a shortage of time. We want to complete the Bill and we do not want it to fall because of some procedural device. It has been argued that there must be a decision about the Bill today.
I referred earlier to the interim report from the Law Commission to which the Solicitor-General paid high tribute. On page 3 under the heading, "Reasons why
early legislation is desirable", the report says:
The cost of law reform should not fall upon an individual litigant if this can be avoided. Thus where a doubt exists as to what the law is on an important topic such as this, there is a strong case for resolving that doubt by legislation.
This is a deeply impressive report which must leave any reader with the impression that legislation is urgently necessary. In an eloquent judgment given in the Supreme Court of Canada it was said:
If a right of action be denied to the child"—
this is the child suffering from pre-natal injuries—
it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind, it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the Courts for injuries wrongly committed upon its person while in the womb of the mother.
I hope that no right hon. or hon. Gentleman will take exception to that judgment. If we are to protect the unborn child who suffers grievous injuries, then we should give this Bill a fair wind. We on this side of the House want to see the Bill given a Second Reading today. We will play our part in improving the Bill in Committee. We have also repeatedly emphasised that we are concerned about the problems of all disabled children.
Thalidomide was man-made. The drug's victims are man-maimed. So far as we know, this is not true of deformities of children afflicted by, for example, spina bifida. The difference is deeply important in terms of legal liability and compensation. But the extent of disablement and the needs of the two groups of children and their families are much the same. They face the same daunting problems, the same hardships and the same heavy additional costs.
In the absence of action by the Government, not least in conceding an adequate disability income, even some of our most severely disabled children and their families will have to go on living in conditions of relative poverty and preventable suffering. It is this thought that must inform any consideration of the Government's £3 million fund for the special needs of children with very severe congenital disabilities. We have not been told which of the special needs of the entitled families will be met from the fund.
Even the number of families that will benefit can only be guesstimated, for none of us knows how many children suffer from congenital disabilities. Nor do we know why the figure of £3 million was chosen. Assuming that £3 million is not just the figure the Government first thought of, is this all they can afford? Or is it all they think is necessary? Again, we just do not know.
All the Government will say is that the fund will not operate until 1st April and that it is much too early to offer precise answers to these and many other questions. Yet how can we judge the adequacy of the fund if we do not even know how many parents of children with severe congenital disabilities will benefit? The definition of "entitlement" itself raises important questions. I give the example of a case put to me immediately after the Secretary of State's announcement of the fund on 29th November.
Mary, aged 25, is a mongol. She has the mental age of a five-year old child. Her father is a low-paid worker and her mother is disabled by rheumatoid arthritis. They point out to me that Mary is much more difficult to look after now than she was l0, 15 and 20 years ago. But will Mary and her parents benefit from the fund? The answer seems likely to be that they will not, even although, in terms of mental age, Mary is still a congenitally disabled child and not a disabled person. I hope that the Under-Secretary of State will be able to take us further toward a full understanding of the Government's objectives in instituting the fund. I hope he will agree that the figure of £3 million is inadequate on all the information available to us at the present time.
Other hon. Members have spoken about research. It is disgraceful that neither of the two annual reports issued under Section 22 of the Chronically Sick and Disabled Persons Act 1970 has yet been debated by the House. There is very much more that could be said. I am very grateful to the National Fund for Research into Crippling Diseases for what it has done in research into the possible causes of spina bifida. There is much exciting research going on under the aegis of the National Fund. I hope that the House will not seem laggardly by comparison today. There is a great case for taking the Bill to Committee. My hon. Friend the Member for Carlisle has been as reasonable as any hon. Member could possibly be in saying that he will consider any suggested amendment. I hope that the House will give the Bill a Second Reading.
I congratulate the hon. Member for Carlisle (Mr. Ron Lewis) not only on the way he proposed his Bill but also on the fact that he has brought it before the House. He has given us an opportunity to have a very important and necessary discussion on this subject. I want to say also how much I appreciate the way in which the hon. Member for Stoke-on-Trent, South (Mr. Ashley) has carried one step further his contribution towards dealing with the problems of the disabled.
As the only medical practitioner to take part in the debate, it grieves me very much to have to say that I think we are running into very troubled waters indeed if the House carries the Bill on into Committee. The legal as well as the medical aspects make me say this. The persuasive and cogent argument of the Solicitor-General convinces me that we would be foolish to carry this further today.
The heart of the Bill is, surely, partly to protect the community from drugs that it imagines to be safe and partly to ensure that those who are damaged are adequately looked after and compensated. Sadly, this is not happening at present. We desperately and urgently need to do something about our archaic legal system regarding negligence and compensation.
But not today. My hon. and learned Friend spoke about the chain of people responsible—the drug manufacturers; the Government, surely; the doctors; the chemists; but also the parents. The working party document brings out the circumstances in which parents themselves may almost deliberately or negligently cause damage to a child. All these things need to be examined much more carefully than we have been able to do so far.
I have already said that in my opinion the thalidomide problem is not over. We still do not know exactly what Distillers will offer these families or what strings and terms will be attached to the offer. It may be that this is nothing like the offer that it appears to be.
From the general medical point of view, the protection has changed since thalidomide was put on to the market. We have had the 1968 Act—not referred to in the Bill. We have the Committee on the Safety of Medicines. I do not think that the House is aware of the extent to which research into methods of protection has advanced in recent years. Only the other day the medical profession received a circular from the Ministry stating what a relatively simple process it is to investigate whether a drug is likely to have a damaging genetic effect. We were given a rather horrifying list of the number of drugs in common use, particularly those in pschyiatric use, which may have a damaging genetic effect in certain cases. However, there are now much more effective methods of testing the safety of drugs than there were in 1960 when thalidomide descended on us. We also know much more about animal experiments to test the safety of drugs. However, it still takes about two years in general use before it comes to light whether a drug may have dangerous side effects of a small and minor kind.
I believe that the Bill is fraught with unfairnesses and legal difficulties. I agree with the hon. Member for Liverpool, West Derby (Mr. Ogden) that this is really two Bills—one on the drugs issue, and the last three clauses, which seem to be admirable, on the disabled persons side.
The drug companies make the bullet. The chemists load the gun. It is the doctors and the parents who pull the trigger and they must be included in any legislation.
We must think about the question of compensation much more carefully. One hon. Member asked what happens if a girl takes the Pill on good advice and thereafter develops a pulmonary embolism and dies. A doctor has the intolerable task of weighing the risks of the drug with his knowledge of the patient and the patient's disease. We must go into this legislation much more clearly than at the moment. What happens if a psychiatrist, for example, is presented with a suicidal pregnant woman? Does he put her on antidepressants, knowing that they may well damage the child, or does he leave her untreated, knowing that she may do some major damage to herself? This is an area of dreadful alternatives which, as I have said over and over again in the last few minutes, we need to think about, and do something about very urgently—but, please, in this way and not today.
I shall not be long, as other hon. Members wish to speak. I will try to limit my remarks to five minutes. Basically I am a person who believes in open government and in the truth. I believe in telling people what is meant by certain things to the best of my ability. I quote as an example a Dr. Renwick, who has found what seems to be a correlation between diseased potatoes, spina bifida and anencephaly. We do not know as yet, but he seems to have established a co-relation betwen diseased potatoes, the region and the season, and the incidence of these two diseases.
In reply to the hon. Member for Peters-field (Miss Quennell), my hon. Friend the Member for Manchester, Wythenshawe (Mr. Alfred Morris) and myself, the Solicitor General has said clearly that he will investigate this matter. That is fine. We approve that there should be an investigation. Secondly, he offered the advice that in the meantime women contemplating pregnancy should not eat damaged potatoes. That is first-class advice. However, I want to go one stage further and publicise the fact that there seems to be a correlation. All people must know about it. They must then take the risk with that knowledge. We all hope and pray that research will reveal that no correlation exists.
I now turn to the Bill. The lawyers have bad a feast day. As an ordinary human being with an interest in the disabled, to me it appears that Clause 1 goes to the heart of the Bill. I was delighted when the hon. Member for Canterbury (Mr. Crouch) replied in forceful tones when I asked him whether he was saying that innovators should be free of risk. He replied sharply that they should not be free of risk and that there was risk for them. I applaud what he said. The lawyers had better start disabusing their minds. If they are not happy with Clause 1, it can be tightened. All that is happening in Clause 1 is that we are saying, "Take this precaution. Undertake this kind of research. Inform people. Let them know. Take all reasonable precautions and you will be in the clear."
Any one would think from what we have heard from some Conservative hon. Members that we are chasing all the drug firms and the doctors and trying to prevent them from prescribing. That is rubbish and nonsense. The sooner that is said in this House the better. All the protection that they need can be given to them in Clause 1. Far from cutting back on research, there can be more. Far from cutting back on the implementation of medicines, that may be quickened because people will have been given guidance and warning. They will know about the potential risks. I accept that with some diseases, which are severe, there must be a grave risk from the use of drugs, but if there is a chance of alleviation it must be given. The hon. Member for Reading (Dr. Vaughan) was right when he said there is always a balance of judgment.
If a doctor or a drug firm has acted honourably and has observed all the conditions laid down in the clause, that doctor or firm has nothing to fear. The Government should not be cowardly today and try to talk the Bill out. It is a good Bill, which can be modified.
I intervene at this stage, if other hon. Members will forgive my doing so, because there have been two Opposition Front bench speakers and a large number of points and inquiries have been raised. As it is, in the time available I shall be extremely hard pressed to get through my material and deal with the many points raised.
I must first remind the House that, strictly speaking, as my hon. and learned Friend the Solicitor-General pointed out, the Bill must be considered quite clearly as irrelevant to the case of the thalidomide children and the negotiations pending between the liaison committee representing the parents and the Distillers Company. It must be considered irrelevant for two very clear and simple reasons. The first is that, as the promoter of the Bill himself has indicated, it would be a light matter to drop Clause 3—the retrospective clause. If this view is current amongst those supporting the Bill, ipso facto it is irrelevant to anything that may be going on between the Distillers Company and the thalidomide liaison committee.
But even if in Committee it were decided to retain that clause, it nevertheless remains true, under Clause 1(2)(d), that any case brought against a manufacturer who has sold a product would turn upon the likelihood of the relevant medical practitioner being aware that certain conditions or symptoms would be precipitated. In the case of the thalidomide tragedy, when no medical practitioner could conceivably have known and any practitioner, had he known, would have been extremely unlikely to admit it as such in a court of law, it would in this context clearly be quite impossible for that case retrospectively to be held against the Distillers Company. That being so, the Government believe that the Bill is strictly irrelevant to the thalidomide case.
I will answer the hon. Gentleman, whose interest in these matters we all know, by answering rather earlier than I had intended my right hon. and learned Friend the Member for Gloucestershire, South (Sir F. Corfield), who asked whether it was likely that the Safety of Medicines Committee would have passed thalidomide under the present set-up of scrutiny, examination, testing and so on. My advice is that they would have done so had they been in existence. I cannot say more to illustrate the extent to which the Bill is irrelevant to the present case.
I turn now to some of the major flaws in the Bill which not only make matters of drafting of significance here but demonstrate that the Bill could not be tinkered with in Committee so as to remedy the minor objections which have been referred to. There is a fundamental inconsistency and contradiction in what the measure seeks to do. This is bound up with the fact that it ignores one crucial new development since the thalidomide tragedy occurred, and that is the giant strides—I can describe them in no other way—that we have taken since that tragedy to protect the public as far as is practicable against the failures which occurred in that case. The relevance of this is that it has a total bearing on the indispensable word "reasonably" in Clause 1.
When I have described the machinery which exists but which did not exist at the time of the thalidomide tragedy and the fine filter through which it puts any drug or new product which a manufacturer may wish to experiment with or sell, I believe that the House will be bound to appreciate that in no circumstances could any manufacturer who had gone through the machinery be considered to have done something unreasonable in selling a product which might be of the same character as or have similar repercussions to thalidomide.
While reasonableness must be inherent in any attempt to improve the situation, the reasonableness of the existing machinery means that nothing could be added by way of nuts and bolts or dotting i's and crossing t's in any committee consideration of the Bill's details, because, while we have the present machinery of control and scrutiny, it will remain reasonable for a manufacturer to put forward a drug for public sale after it has gone through the safety net.
I remind the House of what is involved. In 1962, after the tragic effects of thalidomide became known, there was widespread anxiety about the absence of safeguards to ensure that new medicines were not put on the market before every possible step had been taken in the light of current knowledge to bring any harmful effects of an otherwise valuable new product to the notice of doctors who would then be able to weigh the risks against the expected therapeutic benefits.
Previously, the only medicines whose marketing was controlled, apart from those of drugs of addiction, were those needing licences under the Therapeutic Substances Act 1956—that is, mainly sera, vaccines, injectionable antibiotics and certain hormones and enzymes. But, following the recommendations of a committee under Lord Cohen, a Committee on the Safety of Drugs under Sir Derek Dunlop was appointed from the beginning of 1964 to operate a voluntary system of screening so as to ensure that drug toxicity data and reports of adverse reactions to drugs in clinical use were made available. The pharmaceutical industry, I am happy to say, co-operated very fully in this system.
The voluntary system which I have described has been superseded by a statutory arrangement under the Medicines Act 1968, but the aims remain the same. The provisions relevant to the Bill are as follows. First, a certificate is required before a new medicine may be used in clinical trials. Secondly, a product licence is required before a new medicine may be marketed. Thirdly, a manufacturer's or wholesaler's licence is required for every establishment engaged in the production or wholesaling of medicines. Fourthly, manufacturers', wholesalers' and importers' premises are subject to inspection by my Department's Medicines Inspectorate. Fifthly, the decision on whether to issue a certificate or licence rests with the licensing authority—that is, my Department and my right hon. Friend—and, as regards a certificate or a product licence, they are required to take account of the safety, efficacy and quality of the medicine. For this purpose they are advised by the Committee on the Safety of Medicines and may refuse, revoke or suspend a certificate or licence or make it subject to specified conditions.
I hope the House appreciates the significance of the points I am drawing to its attention. It has a special bearing upon the very interesting question which the hon. Member for Liverpool, West Derby (Mr. Ogden) raised in the context of whether or not there could be placed upon manufactured products or other pharmaceutical developments a health hazard and safety warning equivalent to that on cigarette packets.
In fact the product licence for the marketing of a new drug may at present be made conditional upon the inclusion in any promotional literature of warnings about contra-indications, side effects, and so on. Furthermore the licence holder, after he has got a licence from my Department, has to supply a data sheet prior to or at the time of advertising the product to practitioners. This data sheet must include the warning stipulated in the licence. Regulations, subject to the negative procedure, came into operation on 1st February 1973. Furthermore, the Medicines Act gives power to prescribe how medicines should be labelled. Regulations should be made later this year, and they will have the effect of passing on manufacturers' warnings. So this is precisely the answer to the query raised by the hon. Member for Liverpool, West Derby.
This adds to the total effect of no fewer than five separate aspects of scrutiny, including safety warning in labels and promotional literature. The effect must be that, as the Bill prescribes, reasonable regard should be had by manufacturers, and that under no conceivable contingency could a court find that in respect of a manufacture which had gone through these five or six stages, including an extra obligation put upon promotional literature, the manufacturer could be said to have acted unreasonably, nor could a distributor, seller or doctor prescribing in respect of the drugs about which we are concerned. I make this point on reasonableness because the whole concept of the Bill is not simply that this is an optional extra which one can take in or take out. The whole concept is, what is reasonable—
|Division No. 54.]||AYES||[4.0 p.m.|
|Archer, Peter (Rowley Regis)||Cohen, Stanley||Douglas Mann, Bruce|
|Ashley, Jack||Cox, Thomas (Wandsworth, C.)||Edwards, Robert (Bilston)|
|Atkinson, Norman||Cunningham, G. (Islington, S.W.)||Faulds, Andrew|
|Barnes Michael||Cunningham, Dr. J. A. (Whitehaven)||Fletcher, Raymond (Ilkeston)|
|Booth, Albert||Davidson, Arthur||Foot, Michael|
|Carter-Jones, Lewis (Eccles)||Davis, Terry (Bromsgrove)||Gilbert, Dr. John|
|Castle, Rt. Hn. Barbara||Deakins, Eric||Golding, John|
|Cocks, Michael (Bristol, S.)||Dell, Rt. Hn. Edmund||Grimond, Rt. Hn. J.|
|Hamilton, William (Fife, W.)||Millan, Bruce||Stallard, A. W.|
|Hughes, Robert (Aberdeen, N.)||Morris, Alfred (Wythenshawe)||Stewart, Rt. Hn. Michael (Fulham)|
|Janner, Greville||Ogden, Eric||Summerskill, Hn. Dr. Shirley|
|Johnson, Carol (Lewisham, S.)||O'Halloran, Michael||Wainwright, Edwin|
|Lewis, Arthur (W. Ham, N.)||Oram, Bert||Walker, Harold (Doncaster)|
|Lewis, Ron (Carlisle)||Orbach, Maurice||Weitzman, David|
|Lipton, Marcus||Pardoe, John||Whitehead, Phillip|
|Lyon, Alexander W. (York)||Parker, John (Dagenham)||Williams, W. T. (Warrington)|
|Mabon, Dr. J. Dickson||Pavitt, Laurie||Woof, Robert|
|McCartney, Hugh||Pendry, Tom|
|Mackie, John||Sandelson, Neville||TELLERS FOR THE AYES:|
|McNamara, J. Kevin||Shore, Rt. Hn. Peter (Stepney)||Mr. William Hamling and|
|Meacher, Michael||Skinner, Dennis||Mr. Harry Lamborn.|
|Mellish, Rt. Hn. Robert||Spearing, Nigel|
|Bell, Ronald||Rees-Davies, W. R.||TELLERS FOR THE NOES:|
|Fisher, Nigel (Surbiton)||Russell, Sir Ronald||Dr. Gerard Vaughan and|
|Fletcher-Cooke, Charles||Mr. Roger Moate.|