HC Deb 25 October 1960 vol 627 cc2225-35

Lords Amendment: In page 23, line 4, leave out "the committee may administer oaths" and insert: in England or Wales or Northern Ireland the committee may administer oaths and any party to the proceedings may sue out writs of subpoena and testificandum and duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action. (2) The provisions of section forty-nine of the Supreme Court of Judicature (Consolidation) Act, 1925, or of the Attendance of Witnesses Act, 1854 (which provide special procedures for the issue of such writs so as to he in force throughout the United Kingdom) shall apply in relation to any proceedings before a disciplinary committee in England or Wales or, as the case may be, in Northern Ireland as those provisions apply in relation to causes or matters in the High Court or actions or suits pending in the High Court of Justice in Northern Ireland. (3) For the purpose of any proceedings before a disciplinary committee in Scotland, the committee may administer oaths and the Court of Session shall on the application of my party to the proceedings have the like power as in any action in that court to grant warrant for the citation of witnesses and havers to give evidence or to produce documents before the committee, and for the issue of letters of second diligence against any witness or haver failing to appear after due citation, to grant warrant for the recovery of documents, and to grant commissions to persons to take the evidence of witnesses or to examine havers and receive their exhibits and productions.

The Minister of Health (Mr. Enoch Powell)

I beg to move, That this House doth agree with the Lords in the said Amendment.

I must point out that there is a misprint in this Amendment. In the fourth line, the English conjunction "and", where it first occurs, should be the Latin preposition "ad".

This House has decided to entrust to the disciplinary committees of the professional boards which the Bill will establish very important disciplinary powers over the persons registered by them. They are powers which may have a far-reaching effect on the livelihood of those to whom they are applied; and as serious as many proceedings before courts. I do not think that any hon. Member would disagree that these bodies should have, and should be seen to have, the power as far as may be to establish the truth. The question therefore arose at an earlier stage in the proceedings upon this Bill whether these bodies should have the power to subpoena witnesses and to secure the production of documents.

The question of the appropriate power of subpoena was considered by the Simonds Committee, which reported earlier this year and, again, I would feel that the whole House would agree with the conclusion on this matter at which that Committee arrived. Perhaps I might just quote one sentence from that conclusion. In paragraph 40 of its Report the Committee said … that justice can only be done if material evidence is not withheld, that this is true of all Courts and tribunals to which the administration of justice is entrusted, that it applies with particular force to tribunals having power to impose such formidable penalties as have the disciplinary tribunals of professional bodies … It is in accordance with that intention and with the recommendations of the Simonds Committee that this Amendment was made in another place.

The first part of the Amendment gives to parties appearing before a disciplinary committee the right to sue out writs of subpoena and rights to secure the production of documents. It gives exactly the same power as the parties would have in a court. The second paragraph applies to that power the machinery for making such writs applicable in Scotland as is available under the two Acts quoted in the second paragraph. Finally, the third paragraph of the Amendment makes the corresponding provision under Scottish law for disciplinary committees sitting in the Northern Kingdom.

Dr. Edith Summerskill (Warrington)

First of all, may I congratulate the right hon. Gentleman on attaining his new office. I must say that this is the sixth occasion since 1951 on which I have congratulated successive Ministers of Health, and I only hope that the right hon. Gentleman will be able to fulfil some of the promises—I only say some of the promises—that I observed he made on the day he was appointed. I am quite sure that he will find this field interesting and humane, and there are various aspects of it in which I think we could well do with certain parts of his brain.

We are prepared to accept all the Amendments. I have not intervened before this, but I am very glad that the Minister has thought fit to make the statement that he has made. There are only two matters of controversy—and I shall not raise the other, as it would not be relevant here. This Bill, like many in the sphere of health, has been accepted by both sides of the House and, in Committee, both sides endeavoured to improve it. On this matter, however, the lawyers felt rather strongly, and in July one of my hon. Friends had intended to speak rather strongly on the matter. After further consideration he has decided to accept the Lords Amendment as it now stands and, in view of the Minister's explanation, we are prepared to accept it. I think that, on the whole, the approach of the Simonds Committee was the correct one.

Lord Balniel (Hertford)

I, too, would like, on behalf at least of the back benchers on this side of the Chamber, to welcome my right hon. Friend the Minister to his new post; to welcome him wholeheartedly, and to say that we are very glad indeed, in contrast to the right hon. Lady the Member for Warrington (Dr. Summerskill), to have all parts of his brain. The abilities which he has brought to bear on the various offices he has held are very highly respected in this House. We are particularly glad to have his ability in a Ministry which is so directly concerned with the ill-health and misery which exists even in this very vulgarly called "affluent society" today. There is a great deal he can do in this service.

This Amendment comes from another place and, as my right hon. Friend has said, is being inserted following on the recommendations of the Simonds Report. I most certainly accept the general intention of the Simonds Committee; namely, that when this House gives to any professional body disciplinary powers, then, as a corollary, that professional body must be given power to subpoena as well.

The argument in favour of the Amendment seems to be set out with complete lucidity in paragraph 11 of the Report, which states: We emphasise that where Parliament has confided to a professional body a disciplinary jurisdiction which enables it to penalise a member by depriving him of the power to earn a living in his chosen profession and perhaps gravely injuring him in his reputation, it is essential that in proceedings before such a tribunal prosecutor and accused alike should have power to enforce the attendance of witnesses. My right hon. Friend, accepting this recommendation, has reinserted into the Bill the words withdrawn from it, without debate, during the Committee stage. I must confess, however, that whilst I accept the general contention of the Simonds Committee, I still have certain misgivings about this Amendment. Whilst my right hon. Friend has reinserted the powers into the Bill, he has not altered the Bill one jot or tittle to meet the conditions that I believe are implicit in any reading of the Simonds Report. Perhaps I might be permitted to quote once again from paragraph 41, which states: The true safeguard is that each tribunal should be fitted and equipped"— fitted and equipped: to deal with matters of evidence in accordance with established legal principles. It is not within the scope of our reference to say to which professional bodies jurisdiction should be given and from which withheld. But it is obvious that caution should be exercised in giving it. It was not within the terms of reference of the Simonds Committee to decide which tribunals are equipped to deal with legal matters, but most certainly it is within the terms of reference of this House, and indeed it is a duty and an obligation of this House, to consider this matter in particular because in this brief Amendment we are establishing seven and possibly twelve new tribunals, giving them what The Times describes as "heavy judicial sanctions", what the Committee itself describes as the power to impose such formidable penalties, and what Lord Simonds in another place described as "most formidable penal powers."

7.0 p.m.

Because of the speedy introduction of this Bill, this matter was hardly discussed, and few of us had time to read it before the Second Reading. With one stroke of the pen on a matter which was not discussed at all during the Committee stage of the Bill, we are doubling the numbers of tribunals in this country which have express statutory power to obtain the issue of writs of subpoena. We are doubling their numbers if we pass this Amendment. This is surely a very major step affecting not only the profession but every citizen in the country. It affects any hon. Member, and it is obviously of particular importance to those who might be patients to these professions.

Are we certain that these tribunals, these courts, are qualified to exercise heavy judicial sanctions? Are they really fitted and equipped to deal with matters of evidence in accordance with established legal principles? Are we really exercising the caution which was a keynote of the Simonds Committee Report, and which the Simonds Committee recommended? Many of us would be more certain in our own minds if we could look to the precedents, especially the precedents from my right hon. Friend's Department, and demonstrate that caution has always been the keynote of legislation.

I do not know whether hon. Members saw in a newspaper this week a report of a disciplinary committee—a rather different kind of disciplinary committee and far less influential than the committees which we are discussing today. It did not have the power of subpoena. I refer to the Tomato and Cucumber Marketing Board, which this week imposed a fine of £40 on a British citizen for failing to fill in some forms. When we read this kind of thing, does a glow of pride at British justice suffuse our hearts or do we have a feeling bordering on contempt at a system which bestows greater and greater judicial powers on courts outside the judiciary? I must make it absolutely clear that I do not in any way criticise the members of these courts, abut I sincerely criticise the lightheartedness with which we seem to be able to pass legislation on these important matters.

Perhaps I might return more directly to the existing disciplinary professional courts. I have no doubt that these existing disciplinary professional courts are of great benefit both to the professions and to the community at large. I have no doubt that they are of great benefit and that they are conducted with the utmost propriety by those who serve on these boards, but I cannot say that caution has been the keynote in setting up these courts.

Hon. Members will see at the back of the Simonds Committee's Report a list of the disciplinary bodies having express statutory power to obtain the issue of writs of subpoena. They are very few in number. They are being doubled tonight. But let us examine for a moment one or two of these courts. Let us examine in particular these courts which lie within the province of my right hon. Friend's Department. If one takes the Midwives Act—

Mr. Speaker

Order. I have to remind the noble Lord that the debate is restricted to this Amendment in page 23, line 4.

Lord Balniel

With the greatest respect, may I put this point to you, Sir? This matter, which I think is generally agreed to be of the greatest importance to the Bill, was not enabled by this House to be discussed during the Committee stage. This is the first occasion on which this House has had the opportunity of discussing what, after all, is perhaps the most controversial element in the Bill. If I might submit one further point—

Mr. Speaker

That does not help me. I am obliged under our rules to confine the debate to the Lords Amendment on the Paper.

Lord Balniel

May I put this further point to you, Sir? In the Second Reading the Minister particularly pointed out that these courts to which we are granting disciplinary powers are based exactly upon the precedents of the courts which existed before. Surely, if we are granting disciplinary powers, it is open to us in this House to discuss whether these courts are worthy and capable of bearing the powers which we are trying to give them in this Bill.

Mr. Speaker

Yes, the courts with which the Amendment is concerned, but not the other ones.

Lord Balniel

I accept your Ruling, Sir, but I think that if anyone does study these other courts, on which I will not attempt to elaborate now, any hon. Member would have grave doubts whether these courts which we are establishing are fit and worthy receptacles of these powers of subpoena which we are now giving. They are not the same in every respect as some of these other courts where there is no statutory obligation to have a legal chairman; where there is no statutory obligation to have a legal assessor, nor to have any member of these courts qualified in law. These courts which my right hon. Friend is setting up, it is true, are to have the benefit of a legal assessor, but surely in this House we must admit that a court consisting of a few remedial gymnasts or a few chiropodists or dieticians, with no legal experience apart from what it receives in the form of advice from its assessor, is a very weak body to wield these substantial judicial powers.

Perhaps I might refer to some words of Lord Silkin, himself a past-president of one of the bodies of chiropodists. To paraphrase his words, he said that they are going to be men of little or no experience. Yet we are proposing to give them powers of subpoena which can be extended to every citizen in this country.

I regret that my right hon. Friend, instead of establishing seven and possibly twelve new disciplinary courts which are really rather ill-qualified courts to bear these powers, is not creating one disciplinary court covering all the professions under the Council.

I am not anxious to delay this Bill. It has been delayed for too long already. But I do say that I regret that my right hon. Friend has not taken the opportunity of improving it. Perhaps one might express the hope that he will take this opportunity of indicating that he will review these other courts, at least to bring them up to the minimum standards demanded by the Simonds Committee.

Dr. Stross

It is true, and I think that the noble Lord the Member for Hertford (Lord Balniel) is right, that in Standing Committee we considered this matter, and my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) made it clear that, in his view, as we were waiting for the Simonds Committee to report, perhaps it would be wiser if we were to leave the major debate on the matter to a later stage. We thought at that time that we might have an opportunity of speaking a little more fully on this occasion, as we felt we could not at that time.

Mr. Kenneth Robinson (St. Pancras, North)

We hoped that we would get the opportunity of discussing it on Report, but, unfortunately, the Simonds Committee did not report in time.

Dr. Stross

I remember that my hon. Friend raised the issue in Committee with these words I think that probably it would be better if we have the major debate later … but at this stage I thought it useful to remind the Committee that the complete removal of the powers of subpoena from disciplinary committees will hamper their effectiveness very considerably He went on to agree with the noble Lord by saying: On the other hand, we are the guardians of the civil liberties and rights of the individuals, and there is undoubtedly a conflict of interest here."—[OFFICIAL, REPORT, Standing Committee B, 2nd February, 1960; c. 72.] I am sure that there is, but I do not find myself by any means agreeing with the noble Lord, and I will give my reasons briefly.

I hope the Minister will not feel embarrassed if I support him, and I should like at the same time to congratulate him on his high office and to wish him well. It is true that we have had from the noble Lord what we rightfully expect from him—a speech in defence of liberty on behalf of the citizen and subject as against the Executive, and he expressed his fears very vividly. Are lawyers the only people to understand evidence? I wonder. If it be true that they understand it better because they are more accustomed to listening to it and to sifting it than are lay people, is it not also true that lay people, listening to cases only of this type and no other kind of case will often have an advantage over the lawyer, because they know all the antecedent circumstances in cases of this kind, the environment of the individual, and can put themselves in that individual's place very easily. That I think is a true safeguard, and if there are legal assessors also to assist them I think that the noble Lord's fears are exaggerated.

I thought the Minister was right when he said that whatever we do we must get at the truth of a matter, and that therefore these powers are essential. I should be sorry to think that they were likely to be abused. The medical men—and I say this with some hesitation, having had some experience in medicine myself—are trained all through their lifetime to look dispassionately and to listen dispassionately to what is said to them and to do their best to sift the truth from the false, the real from the unreal. [Interruption.] Would my right hon. Friend like to intervene to disagree?

Mr. F. Blackburn (Stalybridge and Hyde)

We were wondering which doctors are these.

Mr. Ede (South Shields)

I have no wish to intervene, but I was staggered by the compliment which my hon. Friend was paying to his own profession, for I have never known more dogmatic people than doctors.

Dr. Stross

The truth, when it is once sincerely felt, is often a portion of dogma, and my right hon. Friend, who has expounded at the Box so often during the night, and very often in the early morning, has been as dogmatic as most people.

To end what I was saying, these medical men are essentially trained to sift the real from the unreal, and I think that altogether, with those they represent on these boards, they are as likely to achieve truth and justice as any other body of people.

7.15 p.m.

Sir Hugh Linstead (Putney)

I should like to add my welcome and congratula- tions to my right hon. Friend and to say how glad I am to see his great qualities applied in this new and important office to which he has just come.

I appreciate very deeply the sincere speech which we have just heard from my noble Friend the Member for Hertford (Lord Balniel), and the reasons which impelled him to make it, but I am bound to say that I think on this occasion that the balance of advantage rests quite clearly in favour of the Bill as it is proposed, together with the Amendment which we are now discussing.

I would quarrel with my noble Friend when he suggests that what we are doing here is to double the number of tribunals to have these powers of subpoena. While it is true that only a limited number of similar tribunals in the past have had specific statutory power to do it, in fact any tribunal created under an Act of Parliament has always had the right, independent of the Statute, to go to the High Court and request the support of the High Court to secure the attendance of witnesses. Therefore, I think that we are in no way doubling the number of tribunals with this statutory power. All that we are doing is putting into a Statute the power which would have resided in these tribunals themselves even if it had not been in the Statute.

I would go a stage further and say that the real substance of this Amendment—and perhaps my noble Friend did not quite appreciate it—resides in the fact that we are encouraging these groups of men to become professionals in every sense of the word. If we do not want to see them develop in every sense into professionals, we ought not to legislate in this way for them. If we are hoping to establish them firmly as professional bodies, we must inevitably give them one of the hallmarks of professionalism, which is the right to determine their own standards of conduct and to discipline their own black sheep.

I should have thought that, even though there may be weaknesses in the early days of these tribunals, once these professions have settled down and crystallised themselves and have taken advantage of the opportunities which this Bill will give them, we shall find that, as in other professions, these tribunals will act in a satisfactory way. If we have any doubt about it, we have to remember, as has been quite properly pointed out, that they will have their judicial assessors to help them, and, ultimately, if they do put a foot wrong by any chance, there is a right of appeal to the Judicial Committee of the Privy Council.

This all turns on the question of how we hope that these groups of men and women will develop, and as the whole essence of this Bill is that they should develop the full panoply of professionalism I very hope that on reflection my noble Friend will see that perhaps some of his doubts will be resolved in practice.

Mr. Powell

If I may have the permission of the House to say another word or two, I should like to thank hon. Members and the right hon. Lady the Member for Warrington (Dr. Summerskill) for what they have been good enough to say about me personally.

My noble Friend the Member for Hertford (Lord Balniel) was right in drawing the attention of the House to the important words of the Simonds Committee's Report about the caution required in giving jurisdiction to bodies of this kind. Of course, what we are doing in this Amendment is starting from the point where we have all decided that these are fit bodies to have these disciplinary powers, and are going to give them the full means which they require to exercise them fitly.

He also referred to the fact that not all the existing disciplinary bodies have in every case the full range of the attributes which the Simonds Committee suggested they should have. It would be the intention of the Government as and when opportunity arises in the course of legislation to make good those deficiencies.

Question put and agreed to