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
forwardhaving had more than two and a half days for reflection,
unless they anticipated the judges rulingis it possible
to come back in a weeks time, if necessary? If they believe
that it might be legalit is certainly improperfor 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 Ministersand, indeed, their
officialsare 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 clearlyquite
apart from the judgementthere 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 courts 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 provisionsthe only matter
outstandinginvolve the question whether the Government will
appeal against the courts 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 legislationit 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 Governments submission to the court
and the judges 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
Governments submission, the plaintiffs 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
soughtsimply and in good faithto 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 advisedit
makes the greatest sense to say itthat 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 sensiblethat 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. Todays
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
periodpurely on labellingshould 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 Ministers
difficulty.
Is it
possible for you, Mr. Wilshire, as Chairman of the
Committee, to report to the House authorities the difficulties that
have been created for the Committee?
Perhaps some of us, as ordinary Back Benchers, may also wish to do so. A
real weakness has been revealed in the procedures, because we are being
asked to consider something, the substance of which we cannot possibly
have access
to.
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 Governments 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 meapart from the point of order of which I was given a
little notice before turning up todaythat 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
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 courtsthe
timetable is not in my controland 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 afternoons 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
Governments 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. Gentlemans 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 Ministers 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 Governments 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 themselvesthere 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 placewe hope that that
guidance will be incredibly
robust.
2.58
pm
Dawn
Primarolo:
I shall briefly answer the hon. Lady. At the
heart of the discussion in the review of advertising by the Food
Standards Agency is the
marketing in relation to infants of what is called follow-on formula.
That is what the regulations seek to prevent, so the guidance lays out
what should not happen, on current practice. We will then monitor that
through the 12
months.
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 Governments
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 Fridays 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.
Resolved,
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
oclock.