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Session 2007 - 08
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Public Bill Committee Debates

Infant Formula and Follow-on Formula (England) Regulations 2007

The Committee consisted of the following Members:

Chairman: Mr. David Wilshire
Atkins, Charlotte (Staffordshire, Moorlands) (Lab)
Boswell, Mr. Tim (Daventry) (Con)
Bottomley, Peter (Worthing, West) (Con)
Brooke, Annette (Mid-Dorset and North Poole) (LD)
Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Gidley, Sandra (Romsey) (LD)
Ingram, Mr. Adam (East Kilbride, Strathaven and Lesmahagow) (Lab)
Jones, Helen (Warrington, North) (Lab)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Morley, Mr. Elliot (Scunthorpe) (Lab)
Penning, Mike (Hemel Hempstead) (Con)
Primarolo, Dawn (Minister of State, Department of Health)
Ruane, Chris (Vale of Clwyd) (Lab)
Soulsby, Sir Peter (Leicester, South) (Lab)
Southworth, Helen (Warrington, South) (Lab)
Stoate, Dr. Howard (Dartford) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Celia Blacklock, Adrian Jenner, Committee Clerks
† attended the Committee

First Delegated Legislation Committee

Wednesday 5 March 2008

[M r. D avid W ilshire in the Chair]

Infant Formula and Follow-on Formula (England) Regulations 2007

2.30 pm
Mike Penning (Hemel Hempstead) (Con): On a point of order, Mr. Wilshire. I am raising this point of order owing to the fact that the courts, under Mr. Justice Mitting, ruled on Friday that part of the statutory instrument is illegal and that implementation should be moved from 11 January 2008, which has already passed, to 1 January 2010. That brings the House into the conflict between the Government and the courts of the land, and I find it difficult to understand how we can look at the legislation when the courts and the Government have not resolved that situation.
Peter Bottomley (Worthing, West) (Con): Further to that point of order, Mr. Wilshire. Is it open to the Minister not to move the motion? If the Government are determined to go forward—having had more than two and a half days for reflection, unless they anticipated the judge’s ruling—is it possible to come back in a week’s time, if necessary? If they believe that it might be legal—it is certainly improper—for the Committee to continue consideration, will they withdraw the measure, consult and then come back? If, for any reason, the Government are determined to rule that the measure must go forward now, the explanation had better be watertight. It had better follow not just the letter of the law, but what we are all told is custom and practice, which is that the House does not consider issues that are live before the courts.
Jeremy Wright (Rugby and Kenilworth) (Con): Further to that point of order, Mr. Wilshire. If we are to discuss the matter today, is it in order to have sight of the judgment of Mr. Justice Mitting, so that we can understand exactly what criticisms the judge made? If the decisions taken in the courts have a direct bearing on the content of the instrument, it will be helpful to know what the judge said.
Mr. Tim Boswell (Daventry) (Con): Further to that point of order, Mr. Wilshire. I am no expert in administrative law, but I have always understood that Ministers—and, indeed, their officials—are bound by the concepts of reasonableness. All that we seek to say to the Minister is that it would be reasonable and sensible for her to take a little longer to reflect on the judgment, rather than rushing, and to come back with a considered view, rather than trying to force the measure through, when clearly—quite apart from the judgement—there is a serious issue that has caused a degree of unhappiness and uncertainty.
The Chairman: Does the Minister want to say something?
The Minister of State, Department of Health (Dawn Primarolo): I wonder whether I can be helpful here and explain the position.
The question concerns the legal status of the regulations, following the judgment. The current legislative position follows the judgment. The composition requirements are all expected to be enforced from January 2010. It is in the regulations; that is the current positioning. On labelling, the requirement was that enforcement should be from 1 January 2010, not 1 January 2008. That is the court’s ruling. All other measures, regarding advertising and enforcement and all the other requirements in the legislation, which are before the Committee today, were not struck down by the court. That would be the position with regard to the court ruling.
The labelling requirements and provisions—the only matter outstanding—involve the question whether the Government will appeal against the court’s decision, and I need further information on that legal judgment. However, the rest of the regulations are completely in order and we intend to proceed.
Mike Penning: Further to that point of order, Mr. Wilshire. I thank the Minister for that clarification, but has she raised the exact point that I raised in my point of order. A statutory instrument is not amendable. The only issue that Conservative Members have is with the labelling and the transitional period. We completely agree with the rest of the legislation—it is sensible. It is not, however, amendable.
The Government are taking the statutory instrument forward, although the judge has ruled that that particular part of it is unlawful. The legislation is not amendable; the Minister is introducing legislation that Mr. Justice Mitting ruled illegal.
Peter Bottomley: Further to that point of order, Mr. Wilshire. I think that it is now understood by the Chair and the Committee, and therefore by the House, that the point at issue is not the significant matter of the content of the order, which will come into effect in two years, but the fact that something has apparently come into effect far earlier. If a delay of a week or a month in considering the statutory instrument would make no difference in relation to the given year of 2010, but would make it possible for the Committee to understand the Government’s submission to the court and the judge’s decision on Friday, I submit that it would be proper for the Minister not to move the motion now and for us to reconvene when appropriate.
Through the Chair, I ask whether the Minister has made available to members of the Committee the Government’s submission, the plaintiff’s plea application and the judgment by the court. If those three are not available to us now, I do not see that it is proper for us to pretend that we have given full consideration to this measure. I make that point to the Minister in a way that is not judgmental, but tries to maintain the proprieties of the House in our consideration.
What would be lost if we delayed by a week or a month? I believe that the answer is nothing, but I am open to contradiction. Do we have those three pieces of information available to us? I think the answer is no.
The Chairman: We are getting a little repetitive, although I am anxious to let people say what they want to say, if it is brief.
Mr. Boswell: Further to that point of order, Mr. Wilshire. I respect your judgment on the matter. It would also be helpful if the Minister indicated whether there would be any pressure from the European authorities by way of the enforcement of infraction proceedings against the United Kingdom if the Committee sought—simply and in good faith—to examine the process of the matter a little further before making a final decision.
The Chairman: I am grateful to Members who gave notice that they wanted to raise the issue, because that has given an opportunity to do some research and come up with a view. I am advised—it makes the greatest sense to say it—that almost all of what has been raised is not a matter for the Chair. I am grateful to the Minister for trying to be helpful, but I am rather of the view that we are entering into the debate in advance, and that is not a matter for the Chair either.
The only thing that I can say in an attempt to be helpful to the Committee is that this prayer was laid by the Opposition, and it is therefore not for the Government to withdraw it. The Opposition do not have to move the motion, but if they fail to do so, it will not be open for anyone to raise it again in the future.
Peter Bottomley: Further to that point of order, Mr. Wilshire. That is helpful, but it leaves a dilemma for the Committee. May I ask the Minister, through you, what is the way to resolve that dilemma? If she believes that everything is fine, we will have to go forward and see how things pan out. If she believes it appropriate, in what way might consideration be delayed until more information is available and the Government have a chance to consider for more than just a weekend the implications of the court judgment?
The Chairman: That is a good try, Mr. Bottomley, but it is not a matter for the Chair. It is not for the Chair to try to resolve what is reasonable and sensible—that is not a place where I will go. All I can say is that if the debate were to take place, that is a point of exactly the sort that could be debated.
2.39 pm
Mike Penning: I beg to move,
That the Committee has considered the Infant Formula and Follow-on Formula (England) Regulations 2007 (S.I. 2007, No. 3521).
Thank you, Mr. Wilshire, for your consideration in listening to the numerous points of order. I say to the Minister and to the Committee that Opposition Members are wholly in favour of the basis of the statutory instrument, but have problems with the transitional period and, in particular, with the Government not yet having decided whether to appeal against a ruling made by a judge, Mr. Justice Mitting.
Peter Bottomley: Will my hon. Friend ask the Minister whether she has a copy of the judgment in this room, and if she has, whether we might apply to suspend the sitting and have the judgment circulated to members of the Committee?
Mike Penning: That is a valid point, but I think that the Minister has indicated from a sedentary position that she does not have a copy of the ruling.
Dawn Primarolo: The ruling was made only on Friday. I do not have it in writing, so I am not able to distribute it. Today’s debate is not determined or controlled by me; I cannot do anything about it as a Minister. This debate is determined by House procedures and it was triggered by the prayer being laid against the regulations. I am not trying to be unhelpful, but I am unable to make a proposal to the Committee, which is outside my jurisdiction.
Mike Penning: The Minister has clarified her position and, to an extent, I understand her frustration. However, the Government have had two and a half days since the ruling and their legal representatives were in court for two days, making representations. Mr. Justice Mitting ruled that a transitional period within the statutory instrument is unlawful and that the transitional period—purely on labelling—should be extended from 11 January 2008 to 1 January 2010.
With that in mind and without the evidence and documentation that would allow the Committee fully to appreciate what went on in court and the problems that were raised, I find it impossible for the Opposition to proceed in a debate for which we do not have the information. I do not want this Parliament to be dragged into a legal situation between the Government, any appeal that they make and the court. With that in mind, I terminate my comments.
2.42 pm
Dawn Primarolo: I am in some difficulty. I want to be helpful to the Committee, but this timetable has occurred and it is not for me to explain the legal process to the hon. Member for Hemel Hempstead. However, the fact is that the judgment was made on Friday, and we await the written judgment. When we receive it, Ministers will have to decide whether to appeal the court ruling on the specific matter of labelling, and only labelling, in the regulations and guidance. I should also say that there are other court actions outstanding in Scotland, and one in Northern Ireland.
Mr. Boswell: On a point of order, Mr. Wilshire. As somebody who has not studied these matters in detail, I am concerned that while we are aware of the substance of the judgment, Ministers apparently do not have access to a full transcript of proceedings. Therefore, even their consideration of these matters is impaired. We understand the Minister’s difficulty.
The Chairman: The situation as I understand it is that the Minister and members of the Committee are perfectly free to do as they consider appropriate after the sitting. That is not a matter for the Chair.
Peter Bottomley: Further to that point of order, Mr. Wilshire. My hon. Friend the Member for Daventry has been very helpful. There is usually a solution to most problems. This is not a party political thing and nobody is trying to get any advantage out of it. It is a genuine problem. Is it possible for you, Mr. Wilshire, to ask the Minister to confirm that were the Government to withdraw the statutory instrument, at least temporarily, the prayer would fall and we would not be in this dilemma?
The Chairman: I do not believe that that is a matter for the Chair, either.
Dawn Primarolo: The Government’s position is that we will not withdraw the statutory instrument in terms of the ruling, with regard to the vast majority of the content of the proposals. What has made things difficult is the fact that at no point has it been raised with me—apart from the point of order of which I was given a little notice before turning up today—that there were specific issues for the Opposition. They tabled this prayer. It is their property, and, as I understand it, once it is moved, it locks us into the procedure. I am not straying—
Mr. Boswell rose—
Dawn Primarolo: Just one moment, please. The hon. Gentleman has been in the House long enough to know that matters of procedure are not for the Minister. I can proceed only according to the advice that I have been given with regard to the challenge in the courts—the timetable is not in my control—and I will do so, if the Committee allows me.
Mr. Boswell: I am grateful to the Minister for giving way. I appreciate that she is trying to help the Committee; I say that quite sincerely. Has she considered at least the option of withdrawing the regulations, reflecting, receiving the text of the judgment, and, perhaps, if she still feels minded to continue in the light of that judgment, tabling No. 2 regulations? If my hon. Friends and I, or any other member of the Committee, were to find that objectionable, we would have a right to pray against such measures as a separate procedure. We in the House are familiar with Ministers producing regulations that are considered, and may be found to be, defective or otherwise, taking them away and returning with a replacement that may be considered with due deliberation at the appropriate time.
Dawn Primarolo: I am not prepared to sacrifice important regulations on baby milk formula because the Opposition could not work it out in the days between the judgment and the Committee sitting that, once they had moved their prayer, we would be locked into a procedure—
Peter Bottomley: Will the Minister give way?
Dawn Primarolo: Just one moment. At any point, this matter could have been raised with me. The advice to me is that I can proceed, and that when I have had an opportunity to receive full legal advice, I will have an option as to whether to appeal. If I appeal, obviously, the process will start again; if I do not, there will have to be amending regulations, with this specific point in mind.
The Opposition might have come to us with this point earlier, instead of merely standing up and making it today. It is impossible for me to know whether we could have found a way through the problem. Advertising, composition and the other items in the regulations are important, and I am not prepared to delay the implementation of the regulations when the court has given a clear green light that we can proceed.
Peter Bottomley: I am grateful to the Minister for giving way. I think that we ought to try to keep the temperature down and to depersonalise the matter as much as possible. The point is that the Minister speaks for the Government and not just for herself.
There are two ways of resolving the dilemma. The first is for a discussion to take place between the usual channels in which the prayer and the statutory instrument are withdrawn, which would mean our procedures coming to an end. That has happened in the past. The second is for the Government simply to withdraw the statutory instrument anyway, or to say, through the usual channels, “Can we suspend the sitting and return, even if nothing is withdrawn, to allow time for consideration.”
We have heard from the Minister, helpfully, that she was not aware of the reason that the prayer had been laid. I suspect that some people in her Department might have known that the court action and the associated prayer were linked to the question of what would come before 2010. Delaying now on the statutory instrument would not delay what comes into effect in 2010. We need to find a way through this dilemma.
Dawn Primarolo: I am not prepared to withdraw the statutory instrument.
The Chairman: Order. It may be of assistance to the Committee if I say that it is not possible to withdraw a made statutory instrument. The statutory instrument has been ratified by Parliament and it is being prayed against, so the option of withdrawal is not open.
Peter Bottomley: Further to that ruling, Mr. Wilshire. Are we to understand that, as this is a negative procedure and because of the date when the regulations were laid, the measure has come into effect, not withstanding this debate? If that is the case, there is not much point in further discussion, and perhaps we ought to be overruled. The Government should then introduce amending regulations, which would reintroduce these regulations without the contested element. If the Minister gives that assurance now, this afternoon’s proceedings will become far more effective.
Dawn Primarolo: I can give the hon. Gentleman the assurance that I am prepared to keep all members of the Committee informed on the decision with regard to the labelling points, which are the only points that are not in operation because of the court judgment. That decision is dependent on whether the Government appeal the ruling. If the Government do not appeal, I will let hon. Members know, since they agree with everything else. That would mean that amending regulations were necessary to make it absolutely clear that all the other regulations were proceeding, with the date change on labelling. If the advice to me is to appeal, we will be in the same situation as we are now, and I will keep hon. Members informed.
For clarity, the Government papers and the papers regarding the court action have been lodged in public for some time. They have been lodged with the court, so the Government’s case has been in the public domain for some time.
Peter Bottomley: Does the Minister know whether they are in the Library?
Dawn Primarolo: I hear the hon. Gentleman’s comment. I do not know the answer to that question, but I will certainly check.
I would like guidance from you on how to proceed, Mr. Wilshire. I was going to talk about the rest of the regulations and their importance in supporting Government policy on protecting and encouraging breast feeding. If all those matters are accepted by the Committee, perhaps I should not waste the time of hon. Members by going through them.
I have given members of the Committee clear information with regard to labelling, which is to say that I will inform them as soon as I know whether there will be an appeal, and that if there is no appeal there will be amended regulations. If they accept that, perhaps I should sit down and then respond to any other points that are made.
Mike Penning: I thank the Minister for her comments. Conservative Members have no problem with the legislation. It is excellent legislation that will help many people with the ingredients and contents of the formulas.
I take in good faith the Minister’s assurances, although she might wish to look at the correspondence that I have been sending to the Department, which I accept dates back to long before she took up her post. Our reason for praying against the regulations is the specific problem with the labelling implementation period. Taking into consideration what the Minister has said, we await the Government’s decision on whether to appeal. With that in mind, we will not force a vote this afternoon.
Dawn Primarolo: I am grateful for that intervention. Perhaps I may ask the Liberal Democrat spokesperson, the hon. Member for Romsey, how she wants to proceed today. Is she content— This is an unusual procedure; forgive me, Mr. Wilshire.
The Chairman: Do not worry, Minister. Shortly, I shall invite the hon. Member for Romsey to comment.
Dawn Primarolo: Okay. I shall respond to any questions that the hon. Lady has, and I offer her the same co-operation and information as I have offered to Conservative Front Benchers.
2.55 pm
Sandra Gidley (Romsey) (LD): To clarify, the dilemma we had was over the court case and its implications. Generally, we support the statutory instrument, although we would probably have used the opportunity to debate the next steps and how to improve matters further.
My hon. Friend the Member for Mid-Dorset and North Poole has a few questions, but as we all basically support the measure, it would be almost going through the motions to have a warm-hearted discussion on how great breastfeeding is and what we should do to promote it. I am sure that the Minister could write my speech for me.
2.56 pm
Peter Bottomley: I will add just one thing. For those following our discussions, the point at issue is in regulation 1(b)(ii), which carries the words
“otherwise, on 11th January 2008”.
That is the point at issue, for those who want to understand what all this is about.
2.57 pm
Annette Brooke (Mid-Dorset and North Poole) (LD): I will not engage in a debate, although I would have enjoyed it. However, I have a few specific questions to put.
For those of us who would like the regulations to go further, the review is of great importance. Will the Minister outline exactly what is proposed and when that review will start? She might have to give me various options, given the court decision. Nevertheless, it would be nice to have them. One thing about the court decision that concerns me is the fact that everything is getting pushed back in time; we want some of the changes to be implemented as soon as possible. The statistics and our international comparisons speak for themselves—there is an urgent need for action.
The other issue is the guidelines. If there is to be a delay in the process, perhaps there will be an opportunity for us to have sight of the guidelines. That is important. I am referring in particular to something that was said in the other place—we hope that that guidance will be incredibly robust.
2.58 pm
The FSA is having discussions with all the stakeholders, the industry and all the non-governmental organisations about the composition of the review team and the terms of reference, and about taking the review forward. I want that to move forward as quickly as possible.
Mr. Boswell: I am grateful to the Minister for giving way. To use a phrase that we have touched on once or twice, she has done her best to be reasonable before the Committee. She has acknowledged that both sides of the Committee are interested in breastfeeding where that is practicable, and in the highest possible standards in cases where perhaps it is not.
Will the Minister confirm that the review will at all times be driven by evidence and that any monitoring procedure for any regulations that are introduced will itself be assessed strictly on the basis of evidence, rather than on any prior conclusion?
Dawn Primarolo: I can confirm that to the hon. Gentleman. Indeed, all the regulations, including the labelling provisions, which are being disputed, are based on evidence. It is the intention that the review will be independently chaired to take the matter forward. That matter proceeds. The 12 months have started, but the advertising proposals in the regulations are not affected at all by the court case. The guidance is out for consultation. I shall check whether it is in the Vote Office, but it will definitely be on the FSA website, and has been for some time.
If the hon. Member for Mid-Dorset and North Poole has any views on the matter, I invite her to contribute in relation to the guidance, which follows the basis on which local authorities, as the enforcers, would proceed and what would be considered to be in breach of the recommendations.
I can assure the hon. Lady that everything is proceeding, with the one caveat on the labelling. The labelling issue concerned a requirement in the regulations to make it clear on the packaging not to use follow-on formula for six months plus or to encourage its use in infant formula. I am a little perplexed as to why that is such a big issue, but it clearly is. I will need to look at what has been as a result of the legal judgment.
On the other points that the hon. Lady made, I can assure her absolutely that all that will go ahead, including the reinforcing measures outside the regulations, which it would not be in order for me to talk about today, but details of which I am happy to send to her. They relate to supporting and encouraging breastfeeding for all the good health reasons that, I presume, every member of the Committee supports.
Peter Bottomley: Clearly the Government will have to make some kind of statement to the House. I do not seek a commitment from the Minister, but may I make a suggestion? She should consider making an early written statement, on why the Government are in favour of the measure and on the current situation, given the court case. Later, if that takes time, she should make another written statement and give notice to members of the Committee as to the Government’s decision following the court case itself. An early statement on the current situation and the reasons for the regulations would be helpful to the House.
Dawn Primarolo: I will consider the point that the hon. Gentleman makes, although the position with regard to the response to last Friday’s legal ruling is quite clear. I understand that there is a time limit. I have to consider the arguments, consult with the relevant authorities and come to a conclusion quite quickly. That is determined by the legal process. I will certainly do that and reflect on what the hon. Gentleman says.
The Chairman: I am grateful to the Committee for handling a difficult situation calmly and in a reasoned way. That makes life much simpler. I am eternally grateful that I did not have a long, leisurely, liquid lunch before coming to what I thought might be a quick five minutes of consideration in Committee.
Question put and agreed to.
That the Committee has considered the Infant Formula and Follow-on Formula (England) Regulations 2007 (S.I. 2007, No. 3521).
Committee rose at four minutes past Three o’clock.

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