REMOVAL FROM, AND RESTORATION TO, REGISTER (Hansard, 7 February 1979)

§ Mr. Moyle
I beg to move amendhent No. 38, in page 9, line 24, at end insert: 'whether or not for a specified period'. Briefly, this is a clarifying amendment. It apparently was not clear to all members of the Committee that the Central Council had power not only to remove people from the register but to suspend them. We have put in a specific statement that the Council will have the power to suspend. I hope that that will be acceptable to the House.

§ Mr. Moyle
I beg to move amendment No. 39 in, page 9, line 29, leave out "may" and insert "shall".
In Committee, when we dealt with disciplinary matters, it was left open as an option that the whole Central Council could hear a disciplinary proceeding. The Committee felt that this matter should be dealt with by a committee of the Central Council. This amendment is moved to allow the Central Council to deal with these disciplinary matters either by appointing a committee or more than one committee if necessary. As this meets the wishes of the Committee, I hope that the amendment will be accepted.

§ Mr. Moyle
I beg to move amendment No. 40 in, page 9, line 34, at end insert— and the rules shall so provide that the members of a committee constituted to adjudicate upon the conduct of any person are selected with due regard to the professional field in which that person works". The Committee felt that there should be representation on the committee from members of the same profession as the person whose case was being heard. For example, a health visitor's case would not be heard entirely by general nurses, and so on. This amendment is made to meet more accurately the objective of the previous amendment by referring to professional fields of work. There was a reference to "profession". As health visitors, for example, are nurses as well 492 as health visitors, it was not entirely clear what the simple word "profession" would mean. I hope that the new wording will clarify the position and enble the intentions of the Committee to be put into operation.

§ Mr. Boscawen
We are glad that this amendment has been inserted in this way. In the interests of justice, it improves the clause by providing that individuals have a right to a hearing before those who know their profession. We are grateful that the amendment has been put forward.

§ Mr. Hodgson
When we discussed this amendment in Committee, the wording was: and not less than one quarter of the members of each committee shall be members of the same profession as the person whose case is being heard. The amendment was accepted in principle by the Minister, subject to the definition of the word "profession". The amendment that he has now brought forward uses the words: a committee constituted … are selected with due regard to the professional field in which that person works". In the amendment that we moved in Committee we distinctly said 25 per cent. That is not a majority and would not give an inbuilt bias towards the person, but at the same time it would give a clear assurance that a minority on the tribunal would be of the same profession as the person whose case was being heard.
The Minister's amendment has weakened that by the form of words used. I accept that he is trying to comply with the spirit of what we were getting at in Committee, but we would like to hear why he has chosen to water down the commitment that he gave, particularly as he has amended the points that he made concerning the definition of the word "profession".

§ Mr. Moyle
I beg to move amendment No. 41, in page 9, line 38, at end insert: 'and for the proceedings to be in public except in such cases (if any) as the rules may specify.'. In Committee we had much discussion on publicity in reporting disciplinary matters. It was clear that there were 493 two principles that were difficult to reconcile. The first was the traditional one of British justice, that justice should be open and public. That was the standpoint that the Bill adopted. The other principle was that in professional disciplinary proceedings there was considerable advantage in preserving a certain degree of anonymity, privacy and perhaps, in a limited sense, censorship. Both principles are important. In this amendment we adopt the solution that we had for the Medical Act 1978—that is, that the disciplinary proceedings will take place in public unless the Central Council decides to the contrary. In fact, the General Medical Council has decided that, as a general rule, its disciplinary hearings will be in private, but it is in a position, if it finds that that solution does not work in practice, to revert to publicity. This leaves the Central Council to decide on the reconciliation of these two conflicting principles, and for that purpose I hope that the House will accept the amendment.

§ Mr. Boscawen
I cannot let this amendment go without drawing attention to the fact that there were strong feelings in Committee that the balance was wrong in the Bill as originally drafted. To put an individual on trial before the press and the media in certain lurid cases, and subsequently for that individual to be found guiltless and have to live for the rest of his professional life with that slur on his character, seemed wrong to us, and we sought to avoid it.
We believe that our original amendment to the Bill covered that situation. I agree with the Minister that it is difficult to get the balance right. It is not in the interests of justice or of the public that it should be thought that a professional body, such as the Central Council, is hiding anything from the public. Nevertheless, we feel that there is a need to protect individuals who may be found guiltless.
Although the Minister's amendment—which supersedes our amendment which was passed overwhelmingly in Committee—puts the onus on the Central Council to decide what is best in an individual case, there must be the feeling among members of that Council that the House of Commons has ducked this issue and 494 has not really made up its mind whether it should protect the good name of innocent individuals who may have been tried by the media because of the details of some lurid case. We shall accept the amendment, but I hope that those on the Central Council who draw up the rules will pay attention to the opinions expressed both in Committee and in the House. We have strong feelings that certain cases should be heard in private until the findings are reached because of the fact that they may well cause great harm to guiltless individuals for the rest of their professional careers.

§ Mr. Powell
Will the Minister cast light upon two questions arising from the amendment? He mentioned that the General Medical Council, operating under a similar formula, had decided that cases should normally be heard in private. I wonder whether it would be lawful for the Council to arrive at such a decision under this wording. If the wording in the statute is to be for the proceedings to be in public except in such cases (if any) as the rules may specify". I wonder whether it would be within the statute to make the rules so that the proceedings shall not he in public in any case. Apparently, that is what is happening. Is it happening under the same wording? If so, how can that be in accordance with the provisions of the statute?
The natural meaning and, I would have thought, the legal construction of these words is that the rules can only specify either individual cases or types of case—although they need not specify any at all—in which the hearing is to be in private. There is no power to revoke by rule the general provision that the proceedings are to be in public.
Secondly, could the Minister relate this amendment to amendment no. 48, which proposes to delete paragraph 5 of schedule 3? This deals with the matter of publication. One appreciates that if proceedings are held in public there can be no grounds for attempting to impose censorship upon the reporting of those proceedings. That is inherently contradictory. But what would happen in cases where the hearings are in private? Would there be any offence created by the publication of any part of those proceedings? At the moment paragraph 5 does not specify whether the proceedings 495 are in public or private. There seems to be an overlap that it is desirable to clear up.
If any vestige of paragraph 5 of schedule 3 is to remain, may I draw the Minister's attention to the fact that in the form in which the prohibition is expressed, until paragraph 5 is removed a prohibition on publication or broadcasts in Northern Ireland is meaningless since both broadcasting and publication in the press are equally effective whether the transmission takes place in the United Kingdom or the Republic.
I understand that these points may not be able to be resolved at this stage. However, if that is so, I should be grateful for an undertaking that they will be attended to in subsequent stages of the Bill.

§ Mr. Moyle
I confess that I had not devoted much thought to the question of how publication in Great Britain or the Republic might affect Northern Ireland and its receipt of the information. I intended to remove paragraph 5 of schedule 3 in my amendment and consequently I did not give much thought to the detail. I agree with the right hon. Member for Down, South (Mr. Powell) that paragraph 5, which was inserted as a result of an Opposition amendment in Committee, contained the serious defect that it carried no penalty for the enforcement of its provisions. That is one reason why I believe that paragraph 5 should be removed. It is consequential upon the proposed amendment no. 41.

§ Mr. Powell
Is the Minister saying that after the two Government amendments are passed there will be no penalty and no offence for publishing proceedings that have taken place in private?

§ Mr. Moyle
As far as I can see, that is the case. All these matters will be left to professional enforcement under the rules of the Central Council. I presume that the penalty for breaching rules about publicity would be removal or suspension from the register.
It had been my intention to apply to the Central Council the same solution as we applied to the General Medical Council, but I cannot put my hand on my heart and say that the amendment is word for word the same as the provision relat- 496 ing to the General Medical Council. However, I certainly intend that the amendment should be as near as possible to that, subject to the fact that we are inserting this amendment into a different part of the legislation. The General Medical Council has adopted a similar provision that disciplinary cases will be heard in private. That provision has not yet been challenged and I cannot pass an opinion as to what would be the outcome of a challenge in court.

§ Mr. Powell
Is it the Minister's intention that the Central Council should be able to make rules providing that no proceedings should be in public? We cannot, at the moment, deal with the interpretation of the law under which the General Medical Council operates, but we should decide how we wish this law to be interpreted. Shall we leave it to the Central Council to annul a provision completely? Or do we consider that the Council should have the power from case to case or in a specified class of cases to provide for privacy of hearings? That is a big distinction, and it is not without constitutional importance.

§ Mr. Moyle
The problem to which the right hon. Gentleman has drawn attention could be resolved by removing publicity for all cases for a specified period and by having that removal renewed from time to time.
It is my intention to give the maximum freedom to the Central Council to arrange its own affairs in accordance with the advantage that it sees for the nursing profession. The problem raised by the right hon. Member for Down, South (Mr. Powell) could be solved in the way that I have suggested, but that is a matter for the Central Council.