HC Deb 12 May 1959 vol 605 cc1205-16

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Hughes-Young.]

11.48 p.m.

Mr. Leslie Hale (Oldham, West)

I remember a learned counsel in the High Court applying for the adjournment of a case on the ground that he was very fatigued, having spoken for four hours. His application was supported by his learned friend on the ground that he had had to listen to the four-hour speech. I am tired, but I rise to raise the question of Mr. Alexander Howard Barber, a distinguished gynaecologist, who came to Oldham in 1937.

Mr. Barber is a member of the Royal College of Physicians and the Royal College of Surgeons. He has the distinction of being a man of most excellent character who has won the support of Oldham, and I have my pockets full of letters and telegrams from religious bodies and other organisations in Oldham all pressing that justice should at last be done to this man who has been so long traduced and maligned and defamed without any evidence being submitted to him and without ever having been informed of the charges against him.

In 1937, Mr. Barber took charge of a hospital at Oldham and organised it, reorganised it and instituted a midwifery and domiciliary service and won the highest enconiums for his work. In 1948, when the Health Service was nationalised, the Manchester Regional Board was set up to administer the new organisation in Oldham. Until that moment no complaint had ever been made against Mr. Barber. There was, of course, a period during which salaries had not been settled and in which contracts had not been signed and could not be signed, a period of delay for which Mr. Barber had no responsibility at all, but months went by before particulars were settled. What, in fact, happened was that he was asked to submit particulars.

My great difficulty throughout this matter is the theory, at least attributed to magistrates in a local court, "You must have done summat or you would not be here ", and even in the Corridors of this House I hear, "There must have been something Mr. Barber must have done ". Mr. Justice Barry determined his claim and ascertained what had started the trouble. In a ninety-five page judgment, he said that a junior clerk in Manchester had by chance put Mr. Barber's file in the wrong pigeon hole and he had been classified by that mistake in the wrong book. No complaint was made against Mr. Barber, but the Manchester Board had made up its mind that something had gone wrong and resented it and, in fact, continued to regard and treat him as someone who had misrepresented his position.

Mr. Justice Barry said: What seems to me very much less excusable is that for some quite, to me, incomprehensible reason the Board ct some of its officials seem to have insisted throughout the whole of the Plaintiff's career with the Board that the Plaintiff himself or his late employers, the Health Committee of the Oldham Corporation, were in some way to blame for the error which had been made. Indeed, I am bound to say that I think there can be no doubt that this mistake, a mistake for which in no possible sense can Mr. Barber he held responsible, seems to have provided a kind of permanent black mark upon the Plaintiff's record with the Regional Board and that black mark remained and was not allowed to be forgotten or overlooked right down to the date of the Plaintiff's dismissal and indeed thereafter. That is the High Court Judge stating his view of the case, and no one has attempted to contradict it. The terms for consultants were not settled for many months, but the then Minister of Health, my right hon. Friend the Member for Ebbw Vale (Mr. Bevan), published details which provided that consultants would have the full right of appeal to a medical expert committee if any allegation were made against them or if any question arose about conditions of service and Mr. Barber continued to perform his functions many months after.

On 2nd January, 1950, a foetus was found exposed in a rubbish heap near the hospital. Mr. Barber was not in charge of the hospital at the time and was not living in. The incinerator had broken down, it was Christmas week, and an assistant porter had dealt with this matter in this singularly unhappy and unfortunate manner. An inquest was held and Mr. Barber was completely exonerated, but the coroner thought that the foetus was developed and questioned whether a birth certificate should or should not have been registered to comply with the regulations.

As I say, Mr. Barber was completely exonerated and it clearly had no direct connection with him or his organisation, but following that some months later the Manchester Board offered him terms for a half-time appointment. Dr. Marshall, who is the official medical secretary to the Board, indicated those terms to him. Dr. Marshall has since admitted on oath offering him less than he was entitled to and knew he was doing more work than he had represented and the statements he made to the Ministry of Health were false. He had information which showed he knew they were false and which showed that this distinguished man was offered a contract at much less than he was entitled to receive, a punitive contract. Mr. Barber protested perfectly reasonably.

During this period there was £750 over-paid in salary and he sent it back by return of post. A short time after that he was asked to refund £185 for board and lodging and, without protest, he paid that back. When he protested at being appointed at a lower rate, Dr. Marshall said the Board was thinking of appointing an additional gynaecologist and that the two must share the duties. That matter was not considered until 28th April, according to the minutes of the Board, and was not communicated to Mr. Barber until 1st May.

I have to give a very long story in a very short time, and I am trying to put it, as far as I can, reasonably and consecutively. I have, obviously, to shorten some matters. After his protests about these conditions of employment, a preliminary secret decision was taken to commence an investigation into Mr. Barber's conduct. The Oldham police were employed to inquire into allegations about death certificates and birth certificates without interviewing Mr. Barber, writing to the Director of Public Prosecutions without communicating with him, and writing to the British Medical Association. Finally, there was set up by the Manchester Board a panel of inquiry of four distinguished consultants directed to hold a formal private secret hearing on the activities of Mr. Barber.

Mr. Barber was given no details. He was sent a little form thirteen days before the hearing. He was told that he could not be present on the first day, but he must attend on the second day. The panel was to investigate allegations about birth and death certificates, and one case of suggested clinical negligence which the panel decided was frivolous and did not inquire into at all.

Mr. Barber arrived on the second day. He was then told that it was alleged against him that he did not declare in a death certificate that the death was due to operation. He agreed that one should do that. He said he had always done so, and asked to see the death certificate. He pointed to the words, "Following Caesarian section" in his own handwriting on the certificate. The panel of inquiry said that the Oldham police could not have understood those words or they would not have sent those communications to the Director of Public Prosecutions alleging against Mr. Barber an offence of which he was clearly innocent.

That was a two-day inquiry at which no evidence was taken, at which Mr. Barber was never told any details of the charges against him except one in regard to which the panel itself said that it had already taken Counsel's opinion on the question of the birth certificates and had confirmation that he was right. The panel issued a report to the Board acquitting Mr. Barber of any fault alleged against him.

This report was never communicated to Mr. Barber and never, I believe, was it in full or in detail communicated to the Board. Instead, Mr. Barber was told—which was true—that the panel had alleged against him some lack of tact and errors of judgment. He does not know exactly what they are, but he knows that the prosecutor, Dr. Marshall, was with the panel throughout the hearing, that the panel itself in its award says that it relied much on the factual advice of Dr. Marshall who was the prosecutor, and that the prosecutor was allowed to advise the panel.

Then the Manchester Board, without telling him that he had been acquitted, wrote to Mr. Barber and said that it had decided to dismiss him following the report of the panel. In other words, it tried to convey the impression that the panel had found him guilty. I do not think that a more monstrous plot against the professional life of a man has been revealed to the House for years. It is supported throughout by mis-statements, by inaccuracies and by misrepresentations. When Mr. Barber's case came to the High Court in 1957, after all those years, the Ministry of Health, relying on privilege, declined to disclose the documents, and they have not been disclosed to this day. That was an infamous decision.

In 1950, I came into the matter. I discussed with Mr. Barber the very great difficulties attendant upon his situation. I wrote to the then Minister, my right hon. Friend the Member for Ebbw Vale. My right hon. Friend wrote to Dr. Marshall, and elicited information from Dr. Marshall, who has already admitted half a dozen misrepresentations of fact and a great many concealments of the truth. A month or two later I had a long interview with Mr. Barber. I pointed out the difficulties of the situation. By then, the Board had refused him his contract. He had been told that he must sign it or go. By then, his employment had been terminated, and the Manchester Board, on the termination, had rung up the Oldham police and arranged for two policemen to be present to throw him out of the hospital if he desired to attend there even as a gynaecologist in private practice.

This is the malice of the case. I saw Mr. Barber. I pointed out the difficulties he was in. I saw him for some hours. I came back and wrote a carefully worded letter to the Manchester Board saying: "Let us bury the hatchet. Let us sign the contract and put an end to this situation. Mr. Barber will accept this humiliation. He will sign the new contract. He knows he has no alternative in fighting against a monopolistic Health Service except to be broken professionally or face long litigation."

The Board replied that nothing could be done. It was not until five years afterwards that we knew from the hearing that Mr. Marshall had written to the chairman of the Board saying, in effect: "I had a letter form Mr. Hale, M.P. I had to be very careful what I said to him, but I do not think I have given anything away." Is that the attitude of a public servant dealing with a fair communication from an hon. Member, or an attitude that should be adopted?

In 1953, Mr. Barber wrote to the Ministry of Labour, and that Department replied that it was anxious to help him, and that he was entitled to a hearing before the Industrial Court Tribunal. Mr. Barber made application to the Minister, who passed it on to the Manchester Board, and the Board refused. We have searched the minutes of the Board to find out if it was ever told about it, hut there is no record that it was ever told. That refusal was given over the telephone either by Dr. Marshall or by Mr. Gibbon, and a man was deprived of all his rights in that respect and was forced to go to trial.

These are the main facts that I have to state in this case. Mr. Barber's case was heard before Mr. Justice Barry. The trial lasted a long time, and we were put to about £5,000 in costs—to be paid for by the taxpayer; by you and me, Mr. Speaker, and, if I may say so, more by you than by me because I am now existing almost entirely on the salary earned by my wife as my secretary. Damages of something like £7,000 were awarded.

I raised this case in the House, and I presented a petition signed by more than 11,000 Oldham people. Up to now have tried not to say a word that would exacerbate matters, but I have now given up that attitude because I think that the public should know the facts of this wicked secret trial and the wicked plot to slander a man that has been going on over all these years. Still Mr. Barber does not know what is alleged against him. Still he does not know in what way he had been tactless. Still he does not know what errors of judgment he is said to have committed.

To make matters worse, when he claimed to exercise his right of appeal he was told that he had none; that a contract not having been signed he had lost that right. He was deprived of that. When he went to the Board, the Ministry put forward the even more infamous defence that because he had not put in a full statement in support of his appeal he had technically not complied with the conditions, yet my letter was said to be a technical compliance with the conditions.

Up to now, this has been a painting rather in the style of Goya, but we now have a rather remarkable intrusion by no less a person than the Captain of the Queen's Bodyguard of the Yeomen of the Guard. In March last, the noble Lord, the Earl of Onslow, acting as a Minister, and making a Ministerial statement in reply to a Question in another place, speaking on behalf of the Minister of Health, said that this was a voluntary hospital; that Mr. Barber had a large private practice; that he had received a large sum of tax-free damages, and gave the most fantastic explanation of how the judge had arrived at his decision on the basis of a missing letter that had never been missing but which was referred to in the correspondence—and was hardly referred to at all in the judge's 95-page document. In a few sentences, the noble Lord managed to make a statemen that contained hardly any true fact at all. Mr. Barber is not in private practice—he cannot get any private bed accommodation. His damages were not tax-free—he had to pay 10s. in the £ on them, which was deducted in the assessment of the damages. The hospital is not a voluntary one. How such a statement could have been made in another place, I do not know.

I asked the Minister of Health, who, I must say, has acted very fairly in this, to try to get the Board to see reason. What has now happened? Mr. Barber has been told that the Minister has ruled that there is a moral responsibility on the Board to re-employ Mr. Barber, and on that undertaking I kept quiet. Two vacancies have arisen, and Mr. Barber has applied for them. I have all the correspondence, and it suggests that the Board was already saying: "Ah, this only applies if he comes to us. If we can keep him off the small list recommended by the advisory committee we can still do him down." I will produce sworn evidence that declared that Mr. Barber will never be employed by that Board so long as he is chairman of the Consultants' Committee. So he applies for the post; he is told that he is not short-listed for one, although he got the impression that he is being considered for the other. On the second application he is put on the short list by four votes to three, and when he is on the short list a representative of the Manchester Board gets up and says that if Mr. Barber is put on the short list he has to get the job, because the Minister is under a moral obligation in his favour. So they take a second vote, and he is removed from the short list by four votes to three, and that is Mr. Barber's position today.

I have, without undue emphasis, described in the brief time permitted to me a dark and malicious conspiracy, supported by constant misstatements of facts, by slander, malice, envy and all uncharitableness—a conspiracy which, if I wanted to take a severe view, would be indictable at common law, and which might send these men to Wormwood Scrubs, where they would receive the psychiatric treatment they need. But it is certainly a malicious plot, built up over eleven years, to ruin this man. He has been removed; it has kept him wholly out of employment since 1950 or 1951, and it deprives him of any chance of future employment, unless the Minister takes action. This man now comes humbly to this supreme court for the administration of justice to the individual, and asks for the justice that he has so long been denied. He asks the Minister to say that at long last he is going to take determined action to see that he gets it.

12.7 p.m.

The Parliamentary Secretary to the Ministry of Health (Mr. Richard Thompson)

Just as the hon. Member for Oldham, West (Mr. Hale) finds it difficult to compress the many things he had to say on this sad case into the twenty minutes he took, so I am in the same difficulty of having to compress into the even shorter time that I have a reply which will be of some relevance to everything that he has said. I do not think it would be the slightest use attempting to take up the many different points that the hon. Gentleman raised when he rapidly sketched through the history of this affair. I think that what he wants to know tonight is where we are to go from here.

The essence of the case is this. The High Court found in December, 1957, that Mr. Barber's appointment had been wrongfully terminated; there is no doubt on that score. As a result of that he was awarded substantial damages, and Mr. Justice Barry, in his judgment, reached the conclusion that Mr. Barber's contract with the Manchester Regional Hospital Board—and I quote—" was an ordinary contract between master and servant, and nothing more "; in our plainer language, Mr. Speaker, perhaps we should say between employer and employee", and that in the circumstances Mr. Barber's only remedy was the recovery of damages. The judge negatived Mr. Barber's claim that he was entitled as of right to re-employment by the Board. There is no question here of a failure to reinstate in his old position. The court had not the power, and neither had the Minister, to require or insist on this.

But my right hon. and learned Friend was not prepared to leave the matter in that condition. He requested the Manchester Regional Hospital Board to accept a moral obligation in respect of Mr. Barber, that is to say, that if an advisory appointments committee should recommend Mr. Barber as equally suitable for appointment with one or more other candidates for a consultant post, to recognise the existence of this moral obligation and to weigh it in his favour. The Manchester Regional Hospital Board accepted this obligation, and the real point at issue between us tonight, as I think the hon. Member would agree, is whether the moral obligation is being fairly interpreted in Mr. Barber's case and, if it is not, which is clearly the hon. Member's view, what can be done to ensure that it should be.

Perhaps I should say a few words about how the moral obligation commitment works. Appointments come within the framework of the existing statutory Regulations under Section 14 of the National Health Service Act. It follows from that that the procedure is clearly defined and must be adhered to. There must be, in the first place, open advertisement of the vacancy and an open right of application, and, in the second place, consideration of applications by an advisory appointments committee whose membership is prescribed by the statutory regulations. In the third place, there must only be appointment by the Board of an applicant who is on the committee's recommended list. These statutory procedures, which are mandatory on everybody concerned, including both the Minister and the board, have been followed or are being followed in both these cases.

Mr. Hale

But the hon. Gentleman knows that the British Medical Association says that it is nonsense. It says that Mr. Barber already has consultant status and does not have to graduate again. Those terms apply to senior hospital medical officers and other officers.

Mr. Thompson

Nevertheless, under the regulations, it is necessary for Mr. Barber, like any other consultant, if he applies for a post, to go through the procedure.

The hon. Member has specially called into question the proceedings of the advisory appointments committee on 5th May. This is in regard to the second of the two appointments for which Mr. Barber applied. Following allegations which appeared in the Press, and a resolution from the Oldham and District Hospital Management Committee, I at once requested the Regional Board to report on the proceedings and, in particular, to clarify the position in regard to these very allegations. It is true that an officer of the Board referred to the existence of the moral obligation and told the committee that in his view it was highly probable, because of the obligation, that the Board would decide to offer the post to Mr. Barber if his name was included in the submission. This explanation was made in the context of a clear preference by the committee for the appointment of another candidate and with regard to the effect which it might have on its intention.

It is not, however, the fact, as has been alleged, that there was a change in the number of persons prepared to vote in favour of the submission of Mr. Barber's name to the board as a result of this statement having been made. At no time was there a majority in favour of so doing. In view of these allegations, we have thought it right to seek this information from the Board, which in turn has been in touch with the committee's chairman.

Mr. Hale

Why ask the Board? It lied all the time.

Mr. Thompson

If the hon. Member requires a reply to the serious allegations which he has made tonight, perhaps he will give me time to finish, as I gave him time to get on with his original statement.

The chairman of this committee is Alderman Moss, J.P., a former Lord Mayor of Manchester and a highly reputable individual. We have got the information which we sought, and I see no need for a formal inquiry to obtain it. It is unnecessary, and it would be a reflection on Alderman Moss and the committee, to set up an inquiry unless there were a prima facie case that there were relevant facts which could be established only in that way. This is not the position. The facts have been freely vouchsafed in response to our inquiries, and if any point is served by seeking further relevant information this can be done.

I should add that we have thought it right to make these inquiries in the particular circumstances of this case. Of course, these are confidential proceedings, and for obvious reasons it is right that they, like, I suppose, all considerations of applications for employment, should remain so. Unless they do, the proceedings may fail of their purpose, and damage may be done to the candidates concerned, to members of the committee, and the whole machinery of selection. Neither members nor candidates would be able to speak with the complete frankness which confidentiality surely requires.

My right hon. and learned Friend, nevertheless, is anxious to devise a new procedure whereby the moral obligation cases need not necessarily be subject to the full statutory procedure, including the advisory appointments committees. Under present arrangements, the moral obligation can only take effect if the committee recommends. So, as my right hon. and learned Friend announced in reply to a Parliamentary Question recently, he intends to make new regulations which will strengthen the operation of the moral obligation commitment. What he has in mind—and I can say that it has been agreed both with the hospital boards and the medical profession—is to make it possible for boards to offer a post to a consultant to whom a moral obligation applies without advertising and without that consultant first having to compete with other applicants, which is the present statutory position.

The arrangements will not actually compel a board to do this. They are permissive. Nor can the Minister insist that they shall. To introduce compulsion from the centre, whatever the hon. Member may say, would make a very wide divergence from the pattern of the National Health Service Act for which his right hon. and hon. Friends when they were in office were responsible. Nevertheless, what is proposed to be done will ensure that the moral obligation operates at the very outset and improves the situation of any consultants concerned by removing the possibility of their being eliminated, so to speak, in the qualifying rounds before the moral obligation has had a chance to weigh in their favour. This, I should have thought, would go some considerable way to meet the implied, if not expressed, criticism which the hon. Member made to the effect that the whole intention of the moral obligation might be frustrated if the advisory committee never made a recommendation at its stage of the proceedings.

These new regulations involve amending the Regulations now in force. I believe that the hon. Member will find that what is proposed goes a long way to meet his case, I hope he will feel that, m the limited time which has been available tonight, I have indicated that the Minister does take a serious and continuing interest in this matter and is anxious that the moral obligation commitment should be and should be seen to be a reality.

The Question having been proposed after Ten o'clock on Tuesday evening, and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at eighteen minutes past Twelve o'clock.