MATTERS SUBJECT TO INVESTIGATION (Hansard, 12 June 1973)

§ Mr. John
I beg to move Amendment No. 34, in page 37, line 24, leave out subsection (4) and insert: (4) A Commissioner shall conduct an investigation under this Part of this Act unless he is satisfied that it is unreasonable so to do because of the availability of other remedies and the ability of the aggrieved person to avail himself of such remedies; and for the purpose of this subsection, "other remedies" shall mean a course of action in a court of law which is still available to the aggrieved person and which directly covers his grievance. The amendment deals with matters subject to investigation by the Health Service Commissioner.
One of the most difficult features of the Bill, which the right hon. Gentleman has also found, has been the inclusion and exclusion of matters subject to investigation by the commissioner. As the Bill is drafted, the commissioner shall not conduct an investigation in respect of any action in respect of which the person aggrieved has or had a right of appeal or right of reference to a tribunal or any 1436 action in which the person aggrieved has or had a remedy by way of proceedings in a court of law.
It is true that the last sentence of the subsection says the commissioner may conduct an investigation if he is satisfied that in the circumstances the person would not reasonably have resorted or would resort to the remedy. However; in my view, the amendment makes the provision a better one both in its language and in its emphasis. It places a duty on the commissioner to investigate a complaint unless he is satisfied that it is unreasonable to do so by reason of the availability of a remedy. It emphasises the need for the commissioner to investigate as many cases as possible and to rule out only those cases where because of the availability of other remedies and the ability of the aggrieved person to avail himself of such remedies it would be unreasonable for him to conduct such an investigation.
This, together with the definition, forms the basis of the amendment. Other remedies shall mean a course of action in a court of law which is still available to the aggrieved person and which covers his grievance directly.
Two points emerged from the debate in Committee. First, the use of the words "has or had" means not only an action or right of appeal which is currently available to the person but which had been available at one time but which had now either become statute barred or barred by reason of the effluxion of time. Although the commissioner has a discretion to investigate that, I do not think that that is good enough. I believe that if a remedy is to debar a person from having an investigation, it should be a current and relevant remedy at that stage. It should be a remedy that he can enforce then. The wording of the amendment would cover that.
The second point to emerge covered a number of ancillary matters. In this regard, I thank the right hon. Gentleman for his letter in answer to certain of them concerning matters which could form an ancillary basis of a remedy without touching on the main part of the question. But I do not think that the right hon. Gentleman's letter fully meets the point. The question which I posed was whether an investigation into a matter by the 1437 commissioner would be precluded by reason of the fact that there would be a libel in it.
The right hon. Gentleman said that the commissioner could investigate the remedy part without investigating the libel, but often the two are so intertwined that it would be impossible to look into one without looking into the other. Acceptance of the amendment would considerably help to rectify the position. Therefore, on the ground of both elegance of style and effectiveness of the power given to the commissioner, I ask the Secretary of State to accept the amendment.

§ Mr. Pavitt
This amendment is part of a whole series of attempts by the Opposition to widen the scope of the Health Service Commissioner, so I hope that it will be accepted. Reading the proceedings in Committee on this clause, it is obvious that we accept the commissioner's power in its present form, but we shall eventually hope to widen its scope in many ways.

§ Sir K. Joseph
I am not really equipped to argue theological niceties with the hon. Member for Pontypridd (Mr. John). I have the feeling that if all his amendments had been incorporated into the Bill he would have found admirable reasons for objecting to them and substituting those parts of the Bill which he is now criticising. I do not mean that in any malicious way.
I think that in attempting to define the powers of the commissioner we are trying to define the indefinable. There will be so many variants of the circumstances that I rest solidly upon the discretion that the Government propose, which is embodied in the Bill.
The amendment to which the hon. Gentleman has spoken, as always so effectively, supported by his hon. Friend the Member for Willesden, West (Mr. Pavitt), would conflict with the discretion given to the Health Service Commissioner in Clause 34(7) to determine whether to initiate investigations. The amendment would compel him to investigate complaints that were not duly made, that offended the requirement in, for example, Clause 35(4), that were made out of time or had not first been referred to the responsible health authority. It would 1438 also exclude cases where the complainant clearly still had open to him a legal remedy.
I am sure that the hon. Gentleman is right in postulating circumstances where we would all expect the commissioner, despite the provisos, to exercise his jurisdiction. But the Government rest solidly for those circumstances on the discretion that is central to the Bill.
Therefore, not because I think the hon. Gentleman is not right in suggesting that there will be difficult circumstances, but because I believe that even he would not be able to define and encapsulate them all, I hope that the House will accept the discretion and that the hon. Gentleman will not press his amendment.