HC Deb 01 May 1974 vol 872 cc1149-56
The Secretary of State for Social Services (Mrs. Barbara Castle)

With permission, Mr. Speaker, I should like to make a statement about the National Health Service (Service Committees and Tribunal) Regulations 1974, to which my hon. Friend the Member for Watford (Mr. Tuck) drew attention in the House on Monday, and on which you, Mr. Speaker, gave a ruling yesterday.

These regulations, which govern the procedure for the investigation of complaints against family practitioners, are the latest in a series dating from 1948. It was necessary to make new regulations to come into operation on 1st April 1974 to take account of the changes in the administrative structure of the National Health Service introduced by the reorganisation Act; and the opportunity was taken to make some other changes that had been suggested by interested bodies. Draft regulations were sent for comment to these bodies—including the Council on Tribunals, which we have a statutory obligation to consult—in mid-November, but, because of the difficulty of reconciling comments on different aspects of the regulations, a finally agreed version was not achieved in time for the regulations to be made by my predecessor.

Accordingly, I was faced with the necessity of making these and other statutory instruments relating to the reorganisation of the National Health Service at very short notice. These regulations were made on 15th March, 10 days after I took office, but, because of the delay in printing at the time of the three-day week, were not laid before the House until 29th March. The date of operation could not be deferred beyond 1st April since the bodies responsible for operating the procedure under the old regulations were dissolved from that date, and in the absence of new regulations persons with complaints would have been unable to have them considered.

I turn now to the particular provision which my hon. Friend has criticised. The previous regulations approved by Parliament allowed a complainant or practitioner involved in the investigation of the complaint to be assisted at the hearing by some other person in the presentation of his case, but precluded any barrister or solicitor paid for his services, or other paid advocate, from addressing the service committee or examining or cross-examining witnesses. The Patients' Association had represented that, despite this provision, the procedure gave an undue advantage to medical, dental and other practitioners, since barristers and solicitors were allowed to act for them so long as they were not paid, and professional people were more likely than a patient to have lawyers among their friends who would assist them.

For this reason, the regulations now before the House provide that no barrister or solicitor, whether paid or unpaid, should be entitled to address the service committee or examine or cross-examine witnesses, though I must emphasise that he would still be able to attend the hearing and assist his client in other respects. The attention of the Council on Tribunals and of the appropriate organisations interested was specifically drawn to this proposal and none objected to it.

The new provision did not in any way restrict the right of the generality of hon. Members to take part in these procedures on behalf of their constituents; but I regret that we overlooked the point, made by my hon. Friend the Member for Newham, North-West (Mr. Lewis) on Monday, that one consequence would be to debar Members who are legally qualified from doing all they might wish in the interest of their constituents. I fully accept that this cannot be justified. I am required by statute to consult the Council on Tribunals before changing the regulations. I propose to put before it immediately amending regulations intended to remove this limitation on the activities of Members. Meanwhile, the Hertfordshire Family Practitioner Committee has agreed to postpone the hearing in which my hon. Friend the Member for Watford is concerned.

I understand that the same situation applies in Scotland, and my right hon. Friend will be taking action to deal with it,

Mr. Raphael Tuck

I thank my right hon. Friend for her statement, but there are one or two points to which I should draw her attention.

I understand my right hon. Friend's difficulty about these regulations being brought into force. This morning, I telephoned the Journal Office and found that this statutory instrument came into the office on 29th March, a Friday, and that no Member of Parliament could have had any knowledge of the fact that it existed until the Monday following, by which time it already had the force of law. Therefore, it was impossible for any hon. Member or for the House to voice objection to it. I appreciate the difficulties facing my right hon. Friend, but it is monstrous that a statutory instrument should be brought into the House—pushed under the door, as it were—and gain the force of law without Parliament being able to rule on it. Will she ensure that in future a statutory instrument figuratively lies on the Table for at least three weeks before it becomes law?

Second, will my right hon. Friend make a change in what she said? She told the House that the inquiry will now be postponed. That will enable me, when the regulations are amended, to appear. However, I must inform her that the parents of this child are in a terrible state. They want this inquiry over as soon as possible. I wonder whether, in all the circumstances, it would be possible to use some machinery which would exempt me from the regulations. I intended to appear in any event and to warn the committee that, if it prevented me addressing it, it would be interfering with the duties of a Member of Parliament towards his constituents and, therefore, might be guilty of contempt of the House. I do not want to invoke that procedure. I wonder whether anything else can be done.

Mrs. Castle

I feel that my hon. Friend has been less than gracious about my reponse to the point that he made. I should have thought that he would appreciate that my explanation showed that the change in the regulations was made in response to approaches and comments made by the Patients' Association, which felt that this change would strengthen patients' rights in these hearings. I know that my hon. Friend's major concern is to strengthen patients' rights. I have explained that, quite without our intention, the side-effect of this change on the position of Members of Parliament who are also barristers or solicitors was not foreseen. I have taken the steps necessary to change that position as quickly as lies within my statutory power to do. I should have thought, therefore, that my hon. Friend would be willing to withdraw some of the remarks that he made on Monday when he said that these changes were obviously made with him in mind and that they were disgraceful forms of back-door politics.

Mr. English

That was a jest.

Mrs. Castle

I could take that as a jest. I am willing to thank my hon. Friend for bringing this matter to my attention so that it could be remedied. But I had hoped that he would thank me for the response that I have made.

Regarding the timetable, I have already explained that the difficulty and delay in allowing propert time for consideration of these regulations arose from the fact, first, that there had been an election and, second, that I was bound to introduce regulations by 1st April or no machinery would have existed. I am statutorily bound to consult the Council on Tribunals and I must be given time to do that.

Mr. Tuck

I should like to withdraw the statement that I made on Monday. It was made only in jest. I do not want my right hon. Friend to think any less of me because I made it. It was made in jest and I naturally withdraw it.

Sir Geoffrey Howe

Does the right hon. Lady accept that most hon. Members on both sides of the House follow her explanation of the difficulties of timing with which she was faced arising from the relationship between the statutory and the electoral timetables? However, does she agree—I say this in no sense tendentiously—that hon. Members on both sides equally attach high importance to the early availability in print of instruments of this kind so that they may be considered as far as possible by the House before they come into force? I say that not critically, but to secure her undertaking in that respect.

Will the right hon. Lady accept also that I appreciate the motivation for trying to achieve a balance of representation before informal bodies, which these service committees are? But when the amendment that she proposes, which in itself seems welcome, is considered by the Council on Tribunals, will she ask the council to look again at the recommendation by the Franks Committee, in paragraph 87 of its report, to the effect that, in the interest of citizens, the right to call upon the services of a legal representative should be curtailed only in the most exceptional circumstances where it is clear that the interests of applicants generally would be better served by a restriction?

Will the right hon. Lady ensure that consideration is given also to the possibility, no doubt unintended, that the change that is to be made might inadvertently place Members of Parliament in a privileged position against their professional competitors and set them free to appear before such bodies on payment of a fee?

Mrs. Castle

On the first point raised by the right hon. and learned Gentleman, I give the assurance for which he asked. I am well aware of the total desirability of giving the House proper time for consideration of regulations. I am grateful to him for appreciating that we were in an exceptional situation owing to a concatenation of circumstances—the election and the 1st April deadline which I had to meet for new regulations of some kind.

The right hon. and learned Gentleman's later remarks show the difficulties facing us in dealing with this situation. I accept that priority must be given to the rights of Members of Parliament to represent their constituents. This is paramount. However, I agree with the right hon. and learned Gentleman that there may be some complaints about the fall-out of the proposed change as well.

Mr. George Cunningham

Does my right hon. Friend recognise the lesson from this business that it is unacceptable for documents to be notionally laid on the Table when they are not physically available to Members? This is far from being the first time it has happened, even in the past few years. Will she accept that, when a Minister finds himself or herself in this position, it is incumbent on the Minister to have the document written out in longhand if necessary, so that it is available to Members? Will my right hon. Friend raise the matter with my right hon. Friend the Leader of the House, as it goes beyond her departmental responsibilities. in order that a procedural change may be made so that we do not accept notional laying of documents when they are not in fact available to Members?

Mrs. Castle

I appreciate the importance of that point. I am sure that it has been noted in the right quarters. It happens that in this case the non-availability is not one of my alleged crimes.

Mr. Heath

The right hon. Lady has explained some of the difficulties in which she finds herself in reaching a balanced judgment about the matter. She justified the regulations, with which the previous administration were also concerned, on the basis that a professional person is more likely to know a barrister who can represent him in a voluntary capacity. That is an anomaly she has set out to remove by her announcement, but she has now created the further anomaly that a citizen represented in Parliament by a barrister or solicitor will have an advantage over other citizens represented by Members of Parliament with no legal qualifications. Will the right hon. Lady take that into account when considering the regulations again?

Mrs. Castle

I am grateful to the right hon. Gentleman for pointing out that it is not a simple question of black or white. Difficulties can be argued in either direction. I have said merely that I believe that the regulation will have to be amended. I shall have to put my proposals before the Council on Tribunals. It looks as though going back to the previous situation is the only way out of this complex problem without creating too many anomalies.

Dr. Winstanley

Some of us sometimes feel that the generality of Members, to use the right hon. Lady's own phrase, are in fact lawyers. We all warmly welcome the speedy way in which the right hon. Lady has removed an impediment which threatened to prevent the hon. Member for Watford (Mr. Tuck) from fulfilling his functions as a Member of Parliament. Will she remember that it is not only the complainants but sometimes doctors, too, who feel that the tribunals are not wholly satisfactory and that they sometimes appear to usurp functions more properly belonging to the courts? If she ever thinks of allowing legal representation, will the right hon. Lady accept that allowing legal aid will then be essential?

Mrs. Castle

I am grateful for the spirit in which the hon. Gentleman has received my statement. We propose to have a fundamental review of the regulations in the Department before the end of the year, because we want to see how they are working in practice. I had to ensure that there was some complaints machinery by 1st April, because the situation I inherited was extremely urgent. We had to act quickly, but in doing so we always had in mind that there would be a review later.

In speaking of legal aid, the hon. Gentleman raises a much wider question. Whatever its merits, the step which he proposes would be very expensive. In my Department alone, there are dozens, perhaps hundreds, of tribunals to which legal aid would have to apply, and there are other Departments concerned. What I am dealing with this afternoon is purely my attempt to remedy, in the best way I can think of, a situation which has arisen in the short term.