HC Deb 23 July 1946 vol 425 cc1947-70
Mr. J. S. C. Reid

I beg to move, in page 27, line 14, to leave out Clause 35.

This is the Clause which deals with the sale of goodwill. I do not want to repeat what was said in the previous Debate, and, therefore, I can deal very shortly with the more general points that arise. We do not agree that there is any intrinsic reason for abolishing the sale of goodwill. We would only agree to the abolishing of its sale if it achieved some practical benefit, and as yet we have been told of no practical benefit that it will achieve. I do not know whether we shall be told tonight. One odd thing I might mention in passing is that if the Minister thinks it is an intrinsic evil that doctors should sell their practices, I cannot quite understand why it is a good thing that dentists should sell theirs. If this Clause were promoted for practical reasons, I could understand there being a practical difference in the situation between doctors and dentists, but if, as we have been told, the sale of goodwill was decided on before embarking on the exploration of any practical difficulties or troubles at all, on purely intrinsic reasons, then I cannot see why the dentists have escaped from this, but they have.

7.15 p.m. Let me look at the practical reasons. There is really none in past history. There has been no difficulty so far as the patients are concerned. They are free, and always have been, to change from one doctor to another if they want, and if there is any practical difficulty about them having to fill up forms afterwards at any particular time of the year—though I do not think there is—that could easily be changed. After all, if a patient wants to change, he can change, and I am told he frequently does so. I am told that quite a number change before they see the new man at all, because they happen to know of another man in their district whom they would like to have as their second choice. There is quite a large turnover. From the doctor's point of view there is really no difficulty. I have never discovered anybody who could tell me about a doctor who was in any way embarrassed about buying a practice if he wanted to, because the money was not available. Moreover, it is proper that young doctors should start as assistants. The Minister has said so, and, therefore, there is no practical difficulty. The Clause ought not to occur in this Bill, which ought to be for the purpose of making practical improvements in our medical services and of removing blemishes which have practical disadvantages. We ought not to be mixing up medicine and Socialism. We ought to be looking at this from the point of view of the benefit of the people having proper medical services, and we ought not to be bringing in any sort of political ideas—Socialist or Conservative or anything else. I cannot help feeling that although the Minister has tried to put aside politics, and has sometimes quarrelled with his own friends in doing it with respect to other points in the Bill, he has allowed politics to overwhelm commonsense in this connection.

Let us assume, however, that I cannot convince anyone opposite that the sale of goodwill ought to go on. My second point is that if we want to stop it, we do not need, and should not have, anything like so complicated or so oppressive a Clause as we have here. It would not be difficult to draft a Clause under which we could provide, more or less on the lines of Subsection (1) of this Clause, that there should be no direct sale, and we could also provide that other transactions which could be proved to be a mere cloak for payments which were really payments for goodwill, would be illegal on being so proved, and would entail penalties. On that argument the effect of the rejection of this Clause would be to compel the Minister to bring in a new and simper Clause in its place, if he thought one was necessary. Therefore, I think I am in order in saying not only that there is no need to abolish the sale of goodwill at all, but that if we do decide to do it, we ought to do it in a much simpler way.

What would happen if we did that? I take it that the intention of the Minister is only to catch deliberate and serious offenders. I think that is his intention. It ought to be his intention. If he wants to adhere to the principle of stopping the sale of goodwill, he ought not to try to catch out people for having done something which is not really a serious defiance of the law which Parliament has enacted, but this Clause goes into all kinds of minute regulations which are solely in— tended to catch the man who is not a serious, deliberate offender. We can easily catch him. We can catch him with a very simple Clause, because we can prove intent against him, but what we do here is to bring in a lot of other transactions which really have nothing to do with goodwill, and if some sort of witch-hunt can find a trace of goodwill somewhere in the payment, we shall put the man in gaol or fine him a large sum of money.

What will happen is that thousands and thousands of innocent transactions will be impeded—seriously impeded perhaps—in order that, here and there, an odd offender may be caught. Probably there will be only half a dozen prosecutions in the end. There may be as many as 20, but of those 95 per cent. would have been caught under the simplified Clause. For the sake of one or two people, scattered over England, it is suggested that we should introduce these impediments to all transactions. A doctor, or his widow, cannot sell his house to another doctor, or make any partnership agreement with another doctor, or take on another doctor as an assistant, without going to the committee under Subsection (10). He cannot do it safely. That means that he has to go to all the trouble of writing out——

Mr. Bevan

The right hon. and learned Gentleman will remember that Subsection (10) was put in as a consequence of my view that many of the arguments advanced by the right hon. and learned Gentleman were sound. Therefore, so far from being an impediment and an additional grievance, it is a protection.

Mr. Reid

It is not an additional grievance, it is a partial protection. But the original Clause was too silly for words, and the right hon. Gentleman recognised that. The right hon. Gentleman has done his best to meet us here and there without adopting our suggestion to make a very much more simplified Clause, which he could easily have done. I am pointing out that even his best is going to be so harassing to the medical profession in the future that Parliament ought to improve it. No doctor in future can sell his house to another doctor, no doctor can enter into a partnership, no doctor can engage an assistant, without going to this Medical Practices Committee.

He must give the committee a full and comprehensive statement of the full facts of the case. Perhaps a lawyer, or a Member of this House, who is accustomed to drawing up comprehensive and lucid statements, may not find that very difficult. But, a great many doctors, if asked to give a full and comprehensive statement of all the facts of the case, may find it very difficult. The right hon. Gentleman has provided for a certificate, but that becomes worthless under the proviso of Subsection (11) if it fails to disclose all the material circumstances. It is very difficult to say what a court, sitting several years later, would think were material circumstances. Therefore, to be safe, every doctor who enters into one of these bargains must make up a long and comprehensive statement of the facts. That is a monstrous imposition on a busy man.

It would not be so bad if the Minister could guarantee that the Medical Practices Committee will act speedily. I do not know, Mr. Speaker, if you intend to call the Amendment in my name dealing with Subsection (10)—on page 30, line 291 at the end, to insert: but if not so satisfied they shall as soon as possible inform the applicant of the reasons for their decision. If so, I shall not pursue that point.

Mr. Speaker

I thought that all these Amendments to Clause 35 could be considered together.

Mr. Reid

I shall refer to it then. The Minister cannot guarantee that an answer can be given in a fortnight, or three weeks. We all know what happens in the case of hon. Members' correspondence with Government Departments. If we get replies in two or three weeks, we are extremely lucky. Is this body, dealing with doctors who cannot take such steps as Members of Parliament can take if our correspondence is neglected, to guarantee to give a prompt answer to all these matters? I should not have thought so.

The Minister would not even accept what I thought was the extremely reasonable request that if they were against the applicant they would at least write and say "We are against you for this reason …", and then the man would know where he was. A man who has not had an answer for three or four weeks, does not know why the delay has occurred, whether the Committee will say at last, "Yes," or whether he has been refused. Is that the kind of thing we are to impose on every doctor in England and Wales, in order to catch an odd offender in 10,000? The right hon. Gentleman has lost all sense of proportion if that is so, apart altogether from the question of whether the sale of goodwill is or is not a desirable thing and ought not to be prohibited. We would vote against the Clause even on the narrower ground that it is such an imposition of hardship on all medical practitioners in England and Wales to achieve such a 'trifling result that no one must be allowed to do anything without some official having to overlook it. That is the frame of mind which must be behind this Clause. No sensible person would ever have drawn up the Clause unless obsessed by the idea that to allow two people to come together and make an agreement is in some way contrary to the public interest, unless they are overlooked by an official.

Dr. Morgan (Rochdale)

But these doctors will have the help of organisations, the British Medical Association arid defence societies. They can get counsel's opinion in the same way as an ordinary trade union member.

Mr. Reid

The thing gets even worse. I put my argument on two points, first the trouble the doctor would have to sit down, when tired, late at night, and write out the whole story, and secondly, the delay he may encounter. Now the hon. Member for Rochdale (Dr. Morgan) suggests that he will have to go to the trouble and expense of employing counsel.

Dr. Morgan

I said that it would be the natural thing for the doctor in those circumstances to consult with his professional organisation, and his defence society.

Mr. Reid

So every time the doctor, or his widow, wants to sell a house, or every time there is a partnership or an agreement with an assistant, he has to consult counsel, or a defence association, or something of that sort. He cannot do all these simple things without these expert assistants. If it means anything it means that——

Dr. Morgan indicated dissent.

Mr. Reid

But I gather from the fact that the hon. Member shakes his head, that it does not mean anything.

Dr. Morgan

It means exactly this, that doctors are intelligent enough to have an organisation—a very intelligent one—which they can consult in any transactions of this kind.

Mr. Reid

Exactly, and now we are driven to this, that doctors are not to be allowed to enter into quite simple transactions without all the bother of consulting someone in London, perhaps 200 miles away. [HON. MEMBERS: "They do it now"]. I do not think that doctors consult defence organisations before they sell their houses. That is quite a new thing. That is a source of delay additional to the one to which I have referred, because presumably the doctor would consult the organisation before sending up the application to the Medical Practices Committee. So that there are two lots of delays instead of one, and one cannot enter into an ordinary commercial transaction to sell one's house until all this has been done. The thing is even more monstrous than I had thought. I am pretty sure of what the doctors will think about this when they realise what they are being let in for.

7.30 p.m.

Mr. Bevan

I am really astonished at the heavy weather the right hon. and learned Gentleman is making about this. One would really have thought that we had not had a long Committee discussion on this matter.

Mr. Pickthorn (Cambridge University)

We have not.

Mr. Bevan

I am not talking about the hon. Member. I have not yet had the pleasure of listening to him. If he catches your eye, Mr. Speaker, I am sure that it will be instructive and entertaining. The right hon. and learned Gentleman has had the benefit and the ordeal of going through ail this in Committee, and yet he makes a speech of the kind we have just heard. If hon. Members will relate it to the Debate we have just had it will appear even more extraordinary. What happens? The State sets aside a very large sum—£66 million—which the medical profession agrees is extremely generous. [Interruption.] The hon. Member has not been in the House all day, and he must not permit his previous silence to make him garrulous now. The State sets aside that sum in compensation for the loss of goodwill. The State is, therefore, entitled to take precautions to see that any doctor does not get the benefit twice, that he does not still have the goodwill which he can exploit, when, in fact, a sum of money has been set aside, on his behalf, for that purpose.

In the recent Debate, hon. Members opposite argued—and I agreed with a great deal of what they said—that it ought to be possible for the local doctors to influence the appointment of the new doctors. We all agreed that where there is a group, a partnership that is desirable, because a new entrant should have harmonious and sympathetic circumstances, and, therefore, the local doctors should influence the nature of the appointment. A danger immediately arises that the new- corner can, in certain circumstances, give certain financial inducements to local doctors to influence his appointment. That we must at once try to prevent, because the doctors in that area have already had set aside, in respect of their goodwill; a large sum of money. The whole purpose of this Clause is the sale and purchase of practices having been abolished, not to permit the succession to the practice to be influenced by financial considerations. I admit that hon. Members opposite do not agree with the abolition of the sale and purchase of practices, but having taken that as a premise, having set aside £66 million of public money, it is surely reasonable for the State to evolve machinery to protect itself against abuse.

I agree at once that the original Clause was drawn very tightly—microscopically so. It has been substantially amended in Committee. The doctor now needs to state to the medical practices committee the nature of the transaction that is made, the nature of the partnership agreement into which he has entered, a very simple matter indeed, or the nature and the amount of money which he has obtained for his house, provided the successor is a doctor. In the latter event, he has knowingly sold his house to a doctor, and therefore we want to discover whether, in fact, a substantial sum of money has been given for that house in excess of its reasonable value in order that another doctor may go there—in other words,, that the former doctor has not had the goodwill twice. The doctor has to obtain from the medical practices committee, mainly a professional body, consisting of his colleagues, a certificate to the effect that the transaction is a reasonable one. That is a defence in court against any action whatever. It is a defence against any action being taken. Surely, that it is a perfectly reasonable proposition, and every kind of protection is being given to the doctor in this case.

The point was made, and there was substance in it, that a doctor might get himself into difficulty quite innocently. He might not know it was a doctor who was to succeed him, or the widow might have sold the house. There is a later Amendment in which I introduce the word "knowingly," to make it quite clear that there must be awareness of the offence before it has been committed. I should have thought that, in all those cir- cumstances, every kind of protection was being given in this matter. As I have already said, I think that the right hon. and learned Gentleman was really making heavy weather about it. I believe he will find that the introduction of this protective condition, the registration by the medical practices committee, has very largely reassured the medical profession.

As the Bill was originally drafted, it was difficult for a layman to construe it, and some additional protection was necessary. But this registration is" an extremely novel procedure, because normally there is a Statute and a person who commits an offence under it can be prosecuted. In this case we have called in another kind of body altogether, a lay tribunal—lay in the sense that it is not legal—a professional tribunal, to assist doctors, and when that tribunal says that, in fact, the transaction has been a reasonable one the doctor is adequately protected under the Statute. It is only a doctor who has not taken that precaution who will get into trouble. It is only the doctor who, through neglect or for less worthy reasons, has not taken the precaution of getting a certificate from the medical practices committee, will find himself in difficulties.

The right hon. and learned Gentleman said that upstairs I refused to accept an Amendment which would have had the effect of making the medical practices committee inform the individual who had applied for a certificate as to why the certificate had been refused. I did not accept that Amendment because it did not seem to me to have any practical import. In the ordinary way, if the medical practices committee did not wish to give a certificate immediately, it would ask for further particulars. That application for further particulars would, itself, disclose the matter in the agreement which had aroused the suspicion of the committee. That is the normal way in which these things are done. If I may say so respectfully, I do not think that the right hon. and learned Gentleman has taken sufficient credit to himself for some of the suggestions he has made, because I believe that some good can come from Nazareth, and I accepted them.

Mr. Henry Strauss

I shall assume for the purpose of my argument that the prohibition of goodwill stands, and I will not argue that. I concede at once, as indeed did my right hon. and learned Friend, that that means that the right hon. Gentleman will need some provision in the criminal law to enable him to see that there is no abuse, after he has given compensation to doctors for the loss of their goodwill. However much I disagree with the whole policy, I concede that that must be the assumption on which we now approach Clause 35. I would express my belief in the Minister's good intention—I hope I am right. I still believe that he is wholly ignorant of some of the monstrous effects which this Clause will have. If ever there was a case when the right hon. Gentleman was entitled to the presence of the Law Officers on the Government Bench, it is on the discussion of this Clause that he deserves their help. I am not surprised that there is not to be found on the benches opposite during the discussion of this Clause one single lawyer. [An HON. MEMBER "It is commonsense."] A certain number of hon. Members say it is not necessary. Before they decide that, it would be better if they consulted some of their legal friends as to the effect of the Clause as it stands. I am not quite clear, Mr. Speaker, whether for the immediate purpose I ought to suppose that the Clause is as it now stands in the Bill, or as it will be if the right hon. Gentleman's own Amendments are accepted. I imagine I must consider it as it now stands.

Mr. Speaker

The Amendments have not yet been inserted into the Clause. I assume they will be, but they may not be, and so I think we must take the first assumption as being the correct one.

Mr. Strauss

I must deal with the Clause as it stands. I wish to be absolutely fair to the right hon. Gentleman the Minister. I think the Amendments that he is to move subsequently will make the Clause better. They remove some of the monstrous provisions but by no means all its ill effects. One of the great difficulties with which the right hon. Gentleman has not dealt is that he has assumed—and this was assumed by the hon. Member for Rochdale (Dr. Morgan)—that when a doctor or a doctor's widow went to a professional adviser for information as to what he or she could legally do under this Bill, the professional adviser would be able to give a clear answer. Unfortunately that assumption is wholly incorrect.

Mr. Messer (Tottenham, South)

They never do.

Mr. Strauss

That intervention, with characteristic wit which I appreciate, completely destroys the observation of the hon. Member for Rochdale. The professional adviser could not give advice with any confidence on certain perfectly simple transactions, some of which I will mention to the House. Suppose a doctor has died and the widow wishes to sell the house in which he has practised. It may be a house which for a long time, possibly for generations, has been known in the small town as the doctor's house because a doctor has continuously practised in it. The widow has no desire to get any sum to which she is not entitled, but there is no possibility whatsoever of saying with certainty that the price of that house on the market will not be affected by the fact that it has always been the doctor's house. If hon. and right hon. Gentlemen look at the provisions of Subsection (4) of this Clause they will find that the professional adviser cannot possibly give any advice to that doctor's widow as to how she can get rid of that house with any certainty that she is not infringing against the criminal law.

The right hon. Gentleman mentioned a certificate under Subsection (10). At what point is this certificate to be sought? If it is to be sought before the price has been agreed and the contract completed, then that contract may never mature. I wonder whether the Government have ever consulted any of those who are experts in dealing with matters of this kind. Anybody with experience will say that it is very difficult to negotiate in complete ignorance of what one can legally do. One cannot consult the Committee on the price until one knows what the price is. If a contract is completed and the price is wrong, an offence has been committed already, but, until one has completed the contract, how on earth can one consult this Committee to get a certificate?

7.45 p.m.

Suppose the sale is to be by auction. Is that an improper way of selling a house? May it not be the very best way of selling a house, the way which might be most approved? In that case no price is known until the auction has been completed, but by that time there is a com- pleted contract and, if the price is too high, the offence has already been committed. [HON. MEMBERS: No."] It is no good laymen opposite saying "No." If they can produce any lawyer to say that I am wrong, I will be impressed. I am saying what anybody can see by studying the Clause as it now stands. I am absolutely convinced that if hon. Members opposite knew what this Clause really contained they would say it was monstrous. If they were told that this Clause as originally introduced represented what a good Socialist Government had done, and they really understood it, they would be revolted that such a Clause had ever been introduced. It has now been made a great deal longer by improvements inserted on the Committee stage, including in particular a new Subsection (10). It will be made longer still by the Amendments which the right hon. Gentleman is about to move, but even then it will remain a unique piece of criminal legislation and still will prevent doctors and their widows, and many others, entering into the most ordinary and innocent transactions with any certainty that they will not be made liable to the criminal law.

Mr. S. O. Davies (Merthyr)

I understood the hon. and learned Gentleman to base his objection to Subsection (4) on the assumption that a medical practitioner has died and his widow wishes to dispose of their house. Do I understand the hon. Gentleman is a little anxious as to whether the widow of the deceased practitioner might not involve herself in very unpleasant litigation? In what way does he relate his anxieties, which he has mentioned, to what appears to be in Subsection (4)? That refers to: … any medical practitioner or the personal representative of any medical practitioner…. The medical practitioner has gone, he is dead, and the property, we assume, is the widow's. How can the widow be involved?

Mr. Strauss

I am delighted at that intervention, because it shows the good heart of the intervener and the fact that he has no conception of what the Subsection says. The widow will be involved. In the case the hon. Member has put to me she will be the personal representative of the medical practitioner. She will be selling … premises previously used by that practitioner for the purpose of his practice.

Mr. S. O. Davies

Is the presumption that this house is no longer the house of a doctor but the house of a deceased practitioner's wife?

Mr. Strauss

The hon. Member has made an intervention which indicates that he does not grasp the meaning of the Clause. Perhaps this Clause is very difficult to follow for a layman. This widow sells the house to another medical practitioner and receives a consideration. If the consideration for the sale, letting or other disposition is substantially in excess of the consideration which might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice, —if she does that, she is at once involved in a criminal offence. There is no way of ascertaining what is the price she can legally obtain, nor is there any method by which you can exclude with certainty the fact that that house may be more valuable by reason of its having been previously used for the purpose of a medical practice. Suppose that the advice given to her is to sell the house by auction. Nobody can tell what the house will fetch in the auction, but, if the transaction is completed, then an offence has been committed before the widow applies under Subsection (10). If she applies under Subsection 10 in advance, what is the price about which she is going to inquire? There are equal difficulties arising under the law of partnership. Under the Bill as it stands, I believe that, in a great many cases, a lawyer would be bound to advise a partner that the safest thing to do, and, possibly, the only thing to do in many cases, would be to dissolve the partnership before the appointed day. For this purpose, I am dealing with the Clause as it now stands. It may be that some of the Amendments to be moved by the right hon. Gentleman may slightly improve the Clause.

If, for political purposes, any hon. Member of this House, or any anti-Socialist outside, wished to make a case against this Bill, it would be sufficient, I think, to print the whole of this Clause 35, and to show the nature of the vague and unknown threats that hang over the medical profession and others as a result of this wholly novel procedure. I think that no such use has been made of this Clause. Upstairs, as hon. Members who were on the Committee know, we continually tried to explain just how bad this Clause was, but the Minister tried to maintain that it was almost perfect, and, at the conclusion of one day, I implored him, as he obviously did not believe what we said, to be good enough to consult his own law officers. I imagine that he did so subsequently, and that, as a result, he has put down this series of Amendments on the Report Stage. Even improved as the Clause will be, I believe that the provisions with regard to the criminal code are extremely cumbrous and vague and will cause a great deal of inconvenience to a great many people in their ordinary transactions, while I doubt if it will catch anybody, ultimately, in its clutches, because of its complications.

I agree with my right hon. and learned Friend the Member for Hillhead (Mr. Reid) that it would have been possible to meet what the Minister requires by a comparatively simple Clause—not completely simple, perhaps—making it quite clear that a necessary part of the offence was criminal intent. The complications of the Clause, however, are such that I ask hon. Members, before they decide that there is nothing in these points, to take this Clause and consult their professional friends. Let them get a solicitor or barrister and say, "What could a doctor or his widow do, clearly and lawfully, under this Clause?" They will find that there is no clear answer obtainable if their adviser tries to do his job. I ask the House to support the exclusion of this Clause from the Bill.

Mr. Marlowe (Brighton)

I intervene to express my deep apprehension as to the effect of this Clause if it is included in the Bill. We fully realise, of course, that the Minister has certain powers to enforce the principle which lies behind this Bill; if that principle is to be accepted, I cannot quarrel with that, and I do not propose to go into the question of whether on the merits the principle itself is right or wrong. What does concern me is the manner in which this is being done, and I want to draw the attention of the House to Subsection (10), which, as the right hon. Gentleman himself rightly said, is an entirely novel principle. The whole Clause is a novel principle——

Mr. Messer

It is a novel Bill.

Mr. Marlowe

I entirely agree, and I am not against novelty, but, when introducing novelty into the law, we must be sure that it fits into the legal system which is already in existence. That is all I am putting to the House. Subsection (10) does alarm me, because it introduces an entirely novel principle on the question of the establishment of proof. It has been suggested that it is a necessary Subsection to remedy defects which already exist in the Clause. My contention, of course, is that this Clause should not be there at all, though this Subsection does something towards undoing the damage which the Clause itself does, but, even so, I am bound to say that I regard it as a bad legal principle. What, in effect, happens under Subsection (10) is that an outside tribunal is being asked to give directions to a court. That is the general effect. The person concerned can go to the medical practices committee and get a certificate, and that certificate, subject to the proviso whether it has been obtained by fraud or not, is binding on the court. That I regard as a dangerous principle. It is, in fact, working towards ousting the jurisdiction of the courts, because it means that, if the parties interested in a dispute under this Clause go to the court and produce a certificate given by some extraneous body, the court is bound by that certificate. That, as I say, is an extremely dangerous principle. The functions of the courts of this country are to do justice to the parties involved in disputes, and they should be able to do justice in any dispute, de novo, and determine where justice lies as between the parties. I object to the introduction of the principle that, where the parties appear before the court, the court has its jurisdiction limited by the fact that this extraneous body has already made a decision which is binding on the court.

Mr. Messer

Their jurisdiction is not limited, as it is not binding; it is merely admissible as evidence.

Mr. Marlowe

No, it is more than that. The hon. Member will find that it is binding on the court. I have no objection to documentary evidence being made admissible. We have made much progress in recent years on those lines, and it is a great advantage. The hon. Gentleman has evidently not grasped the real point. It is not merely that it is admissible, to which I would not object at all, but that it is binding.

Mr. Messer

Why?

8.0 p.m.

Mr. Marlowe

Because the Bill says so; that is my quarrel with it. The court cannot go behind the certificate. It is no good the hon. Gentleman asking why; if he will read the Subsection he will see that that is its effect. I deplore legislation by which outside bodies may give certificates which bind the court. I believe that when parties come before a court they should be able to put their testimony fairly and freely, and that the court should decide and not be bound by decisions made before the matter came before it. The hon. Member for South Tottenham (Mr. Messer) makes muttering moises——

Mr. Messer

Will the hon. and learned Member say where the court is bound?

Mr. Marlowe

If the hon. Gentleman will read Subsection (11) he will find these words: … and any document purporting to be such a certificate shall be admissible in evidence and shall be deemed to be such a certificate unless the contrary is proved….

Mr. Messer

It only means that it is admissible as evidence.

Mr. Marlowe

I really would ask the hon. Gentleman to accept that it goes beyond admissibility. It goes a good deal further than that. The whole effect of the Subsection is to make the court incapable of going behind the certificate unless the conditions in the proviso are complied with. There is a condition in the proviso that if a certificate has been obtained by fraud the court can go behind it, but the court cannot open up the whole transaction on any other ground. This is a point, as are most other lawyers' points in this House, which is not easily acceptable to hon. Members. [An HON. MEMBER: "Nor are lawyers."] I know only too well that lawyers are not popular in this House when they endeavour to keep legislation on the right lines. I am not, as I have said, speaking on the merits of the Clause; I only wish to caution the House, as far as it is in my capacity to do so, against the danger of legislation which permits an extraneous body to put something before a court which binds it, prior to the dispute coming before it. It is a matter of general principle. I hope the House will agree that it is right that the court should have unfettered powers in dealing with a dispute, and that it should be free to open up the whole discussion and do justice between the parties concerned, and not be bound by something which has happened before.

Mr. Ungoed-Thomas (Llandaff and Barry)

The observations of the hon. and learned Gentleman are quite misleading. He did not say, of course, that the decision of the medical practices committee was made available after the transaction, but his whole argument was based upon that assumption. If he reads Subsection (10), he will find that the opinion is to be given … as to whether a proposed transaction or series of transactions …. In other words, the opinion is to be given before and not after. Therefore, the medical practices committee are not ousting the jurisdiction of the court or dealing with a matter after a transaction has been entered into.

Mr. Marlowe

I quite agree with the point which the hon. Gentleman makes; the certificate is made before the proposed transaction is entered into. But if, thereafter, the transaction is entered into, the certificate becomes binding.

Mr. Ungoed-Thomas

I am not addressing myself to that point; I am addressing myself to the point made by the hon. and learned Gentleman that the certificate given by the medical practices committee ousted the jurisdiction of the court. That certificate is given before, and not after, and, therefore, the whole argument goes by the board; there is no substance in it at all. That also answers the point made by the hon. and learned Member for the English Universities (Mr. H. Strauss), who said that no guilty intent "s required. What the certificate of the medical practices committee shows is that it is impossible, in those circumstances, for a medical practitioner to have a guilty intent. He submits the proposed transaction to an independent body which gives a certificate that it does not involve the goodwill. The speeches of both the hon. and learned Members are defeated by the simple word proposed "in Subsection (10).

Commander Galbraith (Glasgow, Pollok)

As I understand it, the Minister has based his defence of this rather obscure and very far-reaching Clause on the ground that the State is going to provide £66 million as compensation and that, therefore, the Government have to be safeguarded. If he would accept that Amendment he would not be under the necessity of providing compensation at all, because the sale of practices would still be allowed. The intention of the Amendment is to remove Clause 35 altogether. Our chief objection to this Clause is that, by removing the sale and purchase of practices, the whole foundation of the independence of the doctor is being removed. He is being placed more and more in a position in which he can be swayed by the directions of the Government. That is something which I believe will, perhaps, come back and hit many patients very hard in the future. Today, the doctor possessing his own practice feels that he is independent of everyone other than his patient and, therefore, is in a positon to fight his patient's battle against anyone, whether it be the Minister, a Government Department or anyone else. That position will not exist when the basis of independence is removed from him and when he becomes, as I am sure it is the intention of the Government he should become, a mere servant of the State. But that apart, as has

been pointed out by speaker after speaker from these benches, the whole of the provisions in this Clause are absolutely beyond the limit. I wonder how many hon. Members could say exactly what Subsection (4) means and could then read the other Subsections and come to a conclusion on what they mean.

It is true that the Minister has inserted the medical practices committee as a kind of safeguard, but I doubt whether a committee composed of nine members, seven of which are medical practitioners, is capable of judging all the things which can happen under the provisions of this Clause. It seems that a committee of nine Lord Chancellors would be a more appropriate body to deal with the matter. Again, the safeguard which is provided is practically removed altogether by the provision under Subsection (11) of the Clause. For these reasons, and because we believe that this Clause kills the independence of the doctor, and that it is utterly unworkable, we propose to vote against it.

Question put, "That the words proposed to be left out, to the word 'summary,' in line 29, stand part of the Bill."

The House divided: Ayes, 305; Noes, 110.

Division No. 268.] AYES. [8.10 p.m.
Adams, Richard (Balham) Buchanan, G. Dodds, N. N.
Allen, Scholefield (Crewe) Burden, T. W. Driberg, T. E. N.
Allighan, Garry Burke, W. A. Dumpleton, C. W.
Alpass, J. H. Butler, H. W. (Hackney, S.) Durbin, E. F. M.
Anderson, A. (Motherwell) Byers, Frank F. Dye, S.
Anderson, F. (Whitehaven) Callaghan, James Ede, Rt. Hon. J. C
Attewell, H. C. Champion. A. J. Edelman, M.
Austin, H. L. Chater, D. Edwards, Rt. Hon. Sir C. (Bedwellty)
Awbery, S. S. Chetwynd, Capt. G. R. Edwards, N. (Caerphilly)
Ayles, W. H. Clitherow, Dr. R. Edwards, W. J. (Whitechapel)
Ayrton Gould, Maj. B. Cluse, W. S. Evans, John (Ogmore)
Bacon, Mist A. Cobb, F. A. Evans. S. N. (Wednesbury)
Baird, Capt. J. Cocks, F. S Ewart, R.
Balfour, A. Collick, P. Fairhurst F.
Barnes, Rt. Hon. A. J. Collins, V. J. Farthing, W. J.
Barstow, P. G. Colman, Miss G. M. Fletcher, E. G. M. (Islington, E.)
Barton, C. Cook, T. F. Follick, M.
Battley, J. R. Cooper, Wing-Comdr. G. Foot, M. M.
Bechervaise, A. E. Corbet, Mrs. F. K. (Camb'well, N.W.) Forman, J. C.
Bellenger, F. J. Corlett, Dr. J. Foster, W. (Wigan)
Benson, G. Corvedale, Viscount
Cove, W. G. Fraser, T. (Hamilton)
Berry, H. Crossman, R. H. S. Freeman, Maj. J. (Watford)
Bevan, Rt. Hon. A. (Ebbw Vale) Daggar, G. Freeman, Peter (Newport)
Bing, G. H. C. Daines, P. Gaitskell, H. T. N.
Blackburn, A. R. Davies, Clement (Montgomery) Ganley, Mrs. C. S.
Blyton, W. R. Davies, Ernest (Enfield) George, Lady M- Lloyd (Anglesey)
Bottomley, A. G. Davies, Harold (Leek) Gibbins, J.
Bowles, F. G. (Nuneaton) Davies, Haydn (St. Pancras, S.W.) Gibson, C. W.
Braddock, Mrs. E. M. (L'p'l, Exch'ge) Davies, R. J. (Westhoughton) Gilzean, A.
Braddock, T. (Mitcham) Davies, S. O. (Merthyr) Glanvilla, J. E. (Conaett)
Brook, D. (Halifax) Deer, G. Gooch, E. G.
Brooks, T. J. (Rothwell) de Freitas, Geoffrey Gordon-Walker, P. C.
Brown, George (Belper) Delargy, Captain H. J. Greenwood, Rt. Hon. A. (Wakefield)
Brown, T. J. (Ince) Diamond, J. Greenwood, A. W. J. (Heywood)
Bruce, Maj. D. W. T. Dobbie, W Grenfell, D. R.
Grey, C. F. McLeavy, F. Shawcross, C. N. (Widnes)
Grierson, E. MacMillan, M. K. (Western Isles) Shinwell, Rt. Hon. E.
Griffiths, O. (Rother Valley) Macpherson T. (Romford) Shurmer, P.
Griffiths, Rt. Hon. J. (Llanelly) Mainwaring. W. H. Silverman, S. S. (Nelson)
Griffiths, W. D. (Moss Side) Mallalieu, J. P. W. Simmons, C. J.
Gruffydd, Prof. W. J. Mann, Mrs. J. Skinnard, F. W.
Guest, Dr. L. Haden Manning, C. (Camberwell, N.) Smith, Ellis (Stoke)
Gunter, Capt. R. J. Manning, Mrs. L. (Epping) Smith, S. H. (Hull, S.W.)
Guy, W. H. Marquand, H. A. Smith, T. (Normanton)
Haire, Flt.-Lieut. J. (Wycombe) Marshall F. (Brightside) Snow, Capt. J. W.
Hale, Leslie Mathers, G. Solley, L. J.
Hannan, W. (Maryhill) Mayhew, C. P. Sorensen, R. W.
Hardy, E. A. Medland, H. M. Soskice, Maj. Sir F.
Harrison, J. Messer, F. Sparks, J. A.
Hastings, Dr. Somerville Millington, Wing-Comdr. E. R. Stamford, W.
Haworth, J. Mitchison, Maj. G. R. Stewart, Capt. Michael (Fulham, E.)
Henderson, A. (Kingswinford) Monslow, W. Stross, Dr. B.
Henderson, Joseph (Ardwick) Montague, F. Stubbs, A. E.
Herbison, Miss M. Moody, A S Swingler, S.
Hewitson, Capt. M. Morgan, Dr. H, B. Taylor, H. B. (Mansfield)
Hobson, C. R. Morley, R. Taylor, R. J. (Morpeth)
Holman, p, Morris, P. (Swansea, W.) Taylor, Dr. S. (Barnet)
Holmes, H. E. (Hemsworth) Mort, D. L. Thomas, Ivor (Keighley)
Horabin, T. L. Moyle, A. Thomson, Rt. Hn. G. R. (Ed'b'gh, E.)
House, G. Nally, W. Thorneycroft, Harry (Clayton)
Hoy, J. Naylor, T. E. Timmons, J.
Hubbard, T. Neal, H. (Claycross) Titterington, M. F.
Hudson, J. H. (Ealing, W.) Nichol, Mrs. M. E. (Bradford, N.) Tolley, L.
Hughes, Hector (Aberdeen, N.) Noel-Buxton, Lady Tomlinson, Rt. Hon. G.
Hughes, H. D. (W'lverh'pton, W) O'Brien, T. Turner-Samuels, M.
Hynd, J. B. (Attercliffe) Oldfield, W. H. Ungoed-Thomas, L.
Irving, W. J. Orbach, M. Usborne, Henry
Janner, B. Paget, R. T. Vernon, Maj. W. F.
Jeger, G. (Winchester) Paling, Rt. Hon. Wilfred (Wentworth) Viant, S. P.
Jeger, Dr. S. W. (St. Pancras, S.E.) Paling, Will T. (Dewsbury) Wadsworth, G.
John, W. Palmer, A. M. F. Walkden, E.
Jones, D. T. (Hartlepools) Pargiter, G. A. Walker, G. H.
Jones, J. H. (Bolton) Paton, Mrs. F. (Rushcliffe) Wallace, G. D. (Chislehurst)
Jonas, P. Asterley (Hitchin) Paton, J. (Norwich) Wallace, H. W. (Walthamstow, E.)
Keenan, W. Pearson, A. Warbey, W. N.
Kendall, W. D. Peart, Capt. T. F. Watkins, T. E.
Kenyon, C. Perrins, W. Watson, W. M.
Key, C. W. Platts-Mills, J. F. F. Wetzman, D.
King, E. M. Poole, Major Cecil (Lichfield) Wells, P. L. (Faversham)
Kingdom, Sqn.-Ldr. E. Porter, E. (Warrington) Wells, W. T. (Walsall)
Kinley, J. Porter, G. (Leeds) Westwood, Rt. Hon. J.
Kirby, B. V. Price, M. Philips Whiteley, Rt. Hon. W.
Kirkwood, D. Pritt, D. H. Wigg, Colonel G. E.
Lang, G. Pryde, D. J. Wilcock, Group-Capt. C. A. B.
Lavers, S. Pursey, Cmdr. H. Wilkes, L.
Lawson, Rt. Hon. J. J. Randall, H. E. Wilkins, W. A.
Lee, F. (Hulme) Ranger, J. Willey, F T. (Sunderland)
Lee, Miss J. (Cannock) Rankin, J. Willey, O. G. (Cleveland)
Leonard, W. Rees-Williams, D. R. Williams, D. J. (Keath)
Levy, B. W. Reeves, J. Williams, J. L. (Kelvingrove)
Lewis, A. W. J. (Upton) Reid, T. (Swindon) Williamson, T.
Lewis, J. (Bolton) Rhodes, H. Willis, E.
Lewis, T. (Southampton) Richards, R. Wills, Mrs. E. A.
Lindgren, G. S. Ridealgh, Mrs. M. Wilson, J. H.
Logan, D. G. Robens, A. Wise, Major F. J.
McAdam, W. Roberts, Emrys (Merioneth) Woods, G. S.
McAllister, G. Roberts, Goronwy (Caernarvonshire) Wyatt, Maj. W.
McEntee, V. La T. Roberts, W. (Cumberland, N.) Yates, V. F.
McGhee, H. G. Robertson, J. J. (Berwick) Zilliacus, K.
McGovern, J. Sargood, R.
Mack, J. D. Scott-Elliot, W. TELLERS FOR THE AYES:
McKay, J. (Wallsend) Shackleton, Wing-Cdr. E. A. A. Mr. Collindridge and
Maclean, N (Govan) Sharp, Lt.-Col. G. M. Mr. Popplewell.
NOES.
Agnew, Cmdr. P. G. Cuthbert, W. N. Glyn, Sir R.
Baldwin, A. E. Darling, Sir W. Y. Gomme-Duncan, Col. A. G.
Beamish, Maj. T. V. H. Davidson, Viscountess Grimston, R. V.
Boles, Lt.-Col. D. C. (Wells) Dodds-Parker, A. D. Hannon, Sir P. (Moseley)
Bossom, A. C. Dower, E. L. G. (Caithness) Headlam, Lieut.-Col. Rt. Hon. Sir C.
Bower, N. Drayson, Capt. G. B. Hinchingbrooke, Viscount
Buchan-Hepburn, P. G. T. Fleming, Sqn.-Ldr. E. L. Holmes, Sir J. Stanley (Harwich)
Challen, C. Foster, J. G. (Northwich) Howard, Hon. A.
Channon, H. Fox, Sqn.-Ldr. Sir G- Hutchison, Lt.-Cm. Clark (E'b'rgh W.)
Clarke, Col. R. S. Fraser, Maj. H. C. P. (Stone) Hutchison, Col. J. R. (Glasgow, C.)
Clifton-Brown, Lt.-Col. G. Fraser, Sir I. (Longdale) Jarvis, Sir J.
Corbett, Lieut.-Col. U. (Ludlow) Gage, C. Jeffreys, General Sir G.
Crosthwaite-Eyre, Col. O. E. Galbraith, Cmdr. T. D. Jennings, R.
Crowder, Capt. John E. Glossop, C. W. H. Keeling, E. H.
Kerr, Sir J. Graham Mullan, Lieut. C. H. Studholme, H. G.
Langford-Holt, J. Neill, W. F. (Belfast, N.) Sutcliffe, H.
Legge-Bourke, Maj. E. A. H. Neven-Spence, Sir B. Taylor, C. S. (Eastbourne)
Lennox-Boyd, A. T. Orr-Ewing, I. L. Taylor, Vice-Adm. E. A. (P'dd't'n, S.)
Linstead, H. N. Osborne, C. Teeling, William
Lloyd, Maj. Guy (Renfrew, E.) Peto, Brig. C. H. M. Thornton-Kemsley, C. N.
Lucas-Tooth, Sir H. Pickthorn, K. Thorp, Lt.-Col. R. A. F.
MacDonald Sir H. (Inverness) Poole, O. B. S. (Oswestry) Turton, R. H.
Mackeson, Brig. H. R. Price-While, Lt.-Col. D. Vane, W. M. F.
Maclean, Brig. F. H. R. (Lancaster) Raikes, H. V. Wakefield, Sir W. W.
MacLeod, Capt. J. Reid, Rt. Hen. J. S. C. (Hillhead) Ward, Hon. G. R.
Macpherson, Maj. N. (Dumfries) Roberts, Maj. P. G. (Ecclesall) Wheatley, Colonel M. J.
Maitland, Comdr. J. W. Robinson, Wing-Comdr. Roland White, Sir D. (Fareham)
Manningham-Buller, R. E. Sanderson, Sir F. White, J. B. (Canterbury)
Marlowe, A. A. H. Scott, Lord W Williams, C. (Torquay)
Marples, A. E. Shephard, S. (Newark) Williams, Gerald (Tonbridge)
Marshall, D. (Bodmin) Shepherd, W. S. (Bucklow) Willink, Rt. Hon. H. U.
Marshall, S. H. (Sutton) Smiles, Lt.-Col. Sir W. Willoughby de Eresby, Lord
Medlicott, F. Smithers, Sir W. Winterton, Rt. Hon. Earl
Mellor, Sir J. Snadden, W. M. York, C.
Molson A. H E. Spearman, A. C. M.
Morris, Hopkin (Carmarthen) Spence, H. R. TELLERS FOR THE NOES:
Morris-Jones, Sir H. Strauss, H. G. (English Universities) Sir Arthur Young and
Morrison, Rt. Hn. W. S. (Cirencester) Stuart, Rt. Hon. J. (Moray) Major Conant.
Mr. Key

I beg to move, in page 27, line 2g, to leave out "summary conviction," and to insert "indictment."

This is carrying out a promise given in Committee by my right hon. Friend. It ensures that all trials will involve trial by jury and not by summary jurisdiction.

Amendment agreed to.

Further Amendment made: In page 27, line 37, leave out Subsection (3).—[Mr. Key.]

Mr. Key

I beg to move, in page 28, line 4, after "practitioner," to insert "knowingly."

This is carrying out another promise made in Committee, and involves, together with the Amendment that follows, in line 8, the necessity for proving both knowledge and purpose before a prosecution can succeed.

Amendment agreed to.

Mr. Key

I beg to move, in page 28, line 8, to leave out "so as to enable," and to insert "with a view to enabling."

This deals with the question of partnerships. It means where a partnership has been entered into before the coming into operation of the Clause there cannot be any offence in accepting any instalments that have been agreed to just previously.

Amendment agreed to.

Mr. Key

I beg to move, in page 29, line 4, at the end, to insert: and the said sale shall be deemed for the purposes of this section to have been effected—

  • (i) in a case to which paragraph (a) or paragraph (b) applies, at the time when the consideration was given or, if the consideration was not all given at the same time, at the time when the first part thereof was given; or
    • 1970
  • (ii) in a case to which paragraph (c) applies, at the time when the agreement was made."
This Amendment applies to assistant agreements. It is the same principle as that applying to partnerships.

Amendment agreed to.

Further Amendment made: In page 29, line 18, at end, insert: and the said sale shall be deemed for tae purposes of this section to have been effected at the time when the remuneration was fixed "[Mr. Key.]

Mr. Key

I beg to move, in page 29, line 41, to leave out from "that," to the end of line 43, and to insert: no part of the consideration was given in respect of the said goodwill or part thereof This Amendment deals with the sale of the equipment of an outgoing to an incoming doctor. If the sale is such that it can be clearly shown the price is a reasonable one, then there cannot be held to be any connection with the goodwill in that sale.

Amendment agreed to.

Mr. Key

I beg to move, in page 31, line 3, at the end, to insert: (13) For the purposes of this and the next two following sections, references to the goodwill of a medical practice shall, in relation to a medical practitioner practising in partnership, be construed as referring to his share of the goodwill of the partnership practice. The Amendment deals with the goodwill of the partnership. When a change takes place it involves that part of that goodwill can be reckoned as part of the goodwill of the partnership practice.

Amendment agreed to.