§ Sir Nicholas BonsorI beg to move amendment No. 52, in page 23, line 40 leave out 'on a point of law'.
The amendment deals with the question of an appeal to an appropriate court in the event of a registrar refusing to register an applicant or to take some of the other steps open to him that might leave the applicant aggrieved. If that happens, the applicant should appeal to the general council.
Under clause 29, an appeal to the general council will be
subject to such rules as the General Council may make for the purpose of regulating appeals under this section.That relates to the point very fully and ably made by my hon. Friend the Member for Stamford and Spalding (Mr. Davies) about the way in which we are taking the Bill forward.It is far from clear—and we have no guidance about this—what rules the general council may make in those circumstances. In respect of the clauses that deal with what the general council can do with regard to the health committee and the committee that deals with complaints of a criminal or disciplinary nature, there is a long list of things about which the council may or shall make rules. I have already expressed at length my reservations about the flexibility which is allowed to it even in those circumstances, but in these circumstances there are absolutely no rules limiting what the general council can do. Under subsection (2), it is clear that it may make such rules as it wishes.
I take into account the fact that the general council will be a very worthy body, and that it will have not the slightest desire to make any rules that are not in the interests of justice or the interests of those who are to be 429 subject to these procedures. None the less, the members will not be legally qualified. It must be a matter of concern that, in something that is starting from an entirely clean sheet and in respect of which there are no precedents, there is no measure by which we can judge the way in which the council is likely to proceed. We must have substantial concern about whether justice will be done in such circumstances.
It is the core of the Bill that there should be a properly compiled register, that the terms of registration should be subject to rules and that the ways in which registration is dealt with are properly administered. It is no good at all arriving at that stage and finding that, when an appeal is made because something has gone wrong, those rules go out the window and other rules are substituted that might fall very far short of the standard that we would require.
§ Mr. Quentin DaviesIs not the substance of the clause unamended and the problem, therefore, that my hon. Friend is addressing in his amendment the fact that the existing text of the Bill is, in effect, an attempt to prejudice the decision of a court—or rather, to use statute in an effort to prevent a court from subsequently accepting jurisdiction as it might choose otherwise to do on any appeal or on any event arising from an alleged breach of justice during the procedures that have been laid down in the Bill—that is, the disciplinary procedures and the appeals on them? Is it not thoroughly unsatisfactory that we should legislate in this way, by explicit legislation of this kind, to try to prevent a court from subsequently accepting jurisdiction and examining the full facts of the case, as that court might decide it is appropriate to do in the circumstances at the time?
§ Sir Nicholas BonsorMy hon. Friend has a very good habit of anticipating everything that I wish to put before the House. Of course he is right. I am now coming to the point of my amendment, which is specific, relating to clause 29(4), which, as unamended, states:
Any person aggrieved by the decision of the General Council on an appeal under this section may appeal, on a point of law, to the appropriate court"—that is, appeal on a point of law only to an appropriate court.If the general council and the registrar were in error of fact, the court—whichever court would be the appropriate one; almost certainly it would be the High Court of Justice —would be debarred from hearing a case in which the grounds of the appellant's reasoning to try to go to that court were based on art error of fact.
We do not know what rules the general council will make with regard to appeals against the decision of the registrar, but it would not be acting in any way out of precedents from other organisations were it to adopt a procedure that is limited to taking evidence in writing, for example. There are many instances in quasi-judicial bodies in which evidence in writing is all that is considered by the regulatory body, and no opportunity is given to the person who is aggrieved to give evidence in person, to call witnesses to answer questions, or to cross-question those who oppose a decision.
§ Mr. BowisWill my hon. Friend explain whether the aggrieved person could be the registrar, on the assumption that the previously aggrieved person has won one stage of 430 the appeal and therefore the registrar could be the aggrieved person at the next stage? I do not understand the relationship between subsection (4) and the next one, which appears to suggest that subsection (4) is in addition to any right of appeal elsewhere. Does that cover my hon. Friend's point? If so, there appears to be legal complexity and confusion that need to be clarified.
§ Sir Nicholas BonsorIn response to the first of the two questions that my hon. Friend put, clearly the registrar could not be the aggrieved person, because subsection (4) deals only with matters arising out of subsection (1). The contents of subsection (1) relate entirely to what the registrar has decided to do. The chances of the registrar appealing vigorously against his own decision seem unlikely—indeed, impossible. The answer to my hon. Friend's first question is that the appeal will take place only when the registrar has done something which, in the view of the person whom he has damaged, he should not have done.
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In response to my hon. Friend's second question, I am not absolutely clear, to be honest, why subsection (5) has been put in. If there is a small claim that could go to a county court instead of the High Court, subsection (5) seems to exclude the limitations of subsection (4), so that, in the event of a small claim, it would appear that, on a matter of fact, the appellant could still take the case to court.
However, if an osteopath is not registered by the registrar, and if that is wrongful, the level of damage that the osteopath will suffer will be way beyond anything that it is within the competence of the county court to amend or give adequate damages for. So the significance of subsection (4) is that in a matter that could have serious financial consequences, the person involved will be debarred from taking any case to court unless he can find a point of law on which he can base his claim for redress. I fear that it will often not be possible to do so, because most of the decisions do not turn on points of law such as whether the tribunal acted outside its powers or whether something was done that the laws of the land say should not have been done.
It is much more likely that the registrar will base his decision on a fact that the aggrieved person alleges to be false. I can think of few circumstances in which subsection (4) would allow an appeal against the decision. Therefore, I am extremely concerned that the amendment should be accepted and that "on a point of law" should be deleted from the clause.
Earlier today, my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) said that appeals to the Judicial Committee of the Privy Council should be only on a point of law, because the committee did not want to have to find on detailed matters of medical fact. From several years of experience of practice in English law, I can assure my hon. Friend that the High Court has no such inhibition. If it did, many people who have been injured by the medical profession would find it difficult if not impossible to achieve redress, because they would not find a judge who was willing to set himself up to try such a case. That is not how English law operates.
In English law, the judge sits in court and takes evidence from experts in the medical field and comes to a proper conclusion. If he does not, one can go to the Court 431 of Appeal. So, whatever may or may not be the case for an appeal to the Judicial Committee of the Privy Council, the reason that my hon. Friend gave cannot justify removing the right of an aggrieved person to take an appeal from the general council to the High Court. I hope that my hon. Friend will take that point.
§ Mr. MossI rise tentatively to answer my hon.—and learned—Friend after five minutes of learned exposition. As he said, the amendment seeks to provide for the appeal to the High Court, or its equivalent under the clause, to be permitted on any ground and not merely on a point of law. Clause 29 deals with appeals against a decision of the registrar connected with registration. The appeal to the High Court is neither the only answer nor the first appeal provided against a decision that the registrar might make under clause 29.
In the first instance, the osteopath would have a right of appeal to the general council. It would be an open appeal that would not be restricted to points of law and would amount to a complete re-examination of the case in question. In addition to an appeal being permitted from the council on the ground that the council had got the law wrong—
§ Sir Nicholas BonsorWill my hon. Friend give way?
§ Mr. MossIf my hon. Friend will forgive me, I am in mid-sentence. I do not mind being subject to a hard time, but being stopped in full flow is a little off-putting.
An appeal could be permitted if it were felt that the general council had got the law wrong. In addition, a decision of the general council that was so unreasonable as to be perverse would also be eligible for appeal to the High Court, because that would involve a point of law.
§ Sir Nicholas BonsorI apologise to my hon. Friend, but I tried to interrupt him before he had completed that sentence because he had moved off the point on which I wanted to intervene about a full re-examination of an appellant's case by the general council.
That relates to my concern about there being no guarantee under clause 29(2) about how the general council will make the rules about an appeal. There are plenty of precedents in other circumstances where such an appeal did not amount to a full rehearing of a case. My hon. Friend is not in a position to assure the House that that will not be the case under the Bill, because it is subject to a decision that the general council has not yet been called upon to make. My concern is that we are putting on the statute book a Bill which cannot guarantee an aggrieved person the rights that my hon. Friend has told us that that person will have.
§ Mr. MossI hear what my hon. Friend says, but he has omitted to say that all the rules that the general council will introduce, in good time, will be looked at most carefully by the Privy Council. If it feels that the general council is not moving in the right direction, it can intervene in the interests of natural justice.
Although I concur with the intention behind my hon. Friend's amendment, it is unnecessary for the appeal to the High Court or its equivalent to amount to a secondary consideration of the matter. I urge the House to reject the amendment.
§ Sir Nicholas BonsorI remain profoundly disturbed by this part of the Bill and I fear that injustice may result from 432 it. In the light of what my hon. Friend has said, however, and the assurances that he has given, I, with some reluctance, beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.