NATIONAL HEALTH SERVICE BILL.

HL Deb 28 October 1946 vol 143 cc747-806

Amendments reported (according to Order).

Clause 5:

Accommodation for private patients.

(2) The Minister may allow any medical practitioner serving on the staff of a hospital providing hospital and specialist services to make arrangements for the treatment of his private patients either at that hospital or at any other such hospital, and may make available for that purpose the special accommodation aforesaid, and in that case the charges prescribed under the last foregoing subsection shall not include the cost of any services rendered by the medical practitioner, and regulations may prescribe the maximum charges to be made and recovered by any such medical practitioner in respect of the treatment of his private patients under this subsection.

4.10 p.m.

LORD LLEWELLIN moved, in subsection (2), after "serving," to insert "whether in an honorary or paid capacity." The noble Lord: My Lords, upon this clause—in which my Amendment comes at line 8 on page 4—there was some debate during the Committee stage. We had a discussion as to whether doctors would be allowed to treat their patients or to arrange for the treating of their patients in hospitals even though they did not appear on the list. The noble Viscount, the Leader of the House, said that in very few instances did a doctor follow his patient into the hospital and attend to him there. Since then, we have made some inquiries, and my noble friend Lord Horder—who wishes me to apologize for him because he is not able to be present in the House today as he has a very important engagement, as chairman, to fulfil outside—has said that he was not entirely satisfied with what the noble Viscount said on that occasion. Lord Border said that a survey which had been made showed that in, at any rate, the smaller general Hospitals, in at least 20 percent. of the cases, the doctors from the locality nearly always followed their patients in because there was not a resident medical staff or the necessary consultants there. The noble Viscount, the Leader of the House, was no doubt speaking very largely about the bigger hospitals, where that is not really the practice except for those on the specialist staff.

In the course of the discussion one point I raised was whether the doctors who came within the words "on the staff of the hospital" included those who were honorary members of the staff. The noble Viscount said that he thought they probably did, but it is quite clear to me that to cover the kind of case to which I have referred and to ensure that if a doctor is on the honorary staff of any hospital he shall be able to send a patient into the hospital and, if necessary, to attend to him there, the insertion of words such as I suggest is desirable. It is in order to make it clear that "the staff of a hospital" is not limited merely to the paid staff that I move here to insert these words. I think we all wish to ensure that whether the doctors are on the staff in an honorary or in a paid capacity, they shall have this right of sending their patients in. That is the simple reason for moving the Amendment. I beg to move.

Amendment moved— Page 4, line 8, after ("serving") insert ("whether in an honorary or paid capacity").—(Lord Llewellin.)

THE LORD CHANCELLOR (LORD JOWITT)

My Lords, when doctors differ, as the noble Viscount, the Leader of the House, and the noble Lord, Lord Horder, seem to have differed, I can only hope that lawyers come into their own. I confess that I have always thought that the proposed new words do not add anything to the Bill, but if they clear up any ambiguity that exists in the minds of your Lordships, I am happy to accept them.

LORD LLEWELLIN

I am very much obliged to the noble and learned Lord for meeting me in this way. I think that it does clear up an ambiguity.

On Question, Amendment agreed to.

Clause 7:

Endowments of voluntary hospitals.

(2) All such endowments shall vest in the board free of any trust existing immediately before the appointed day and shall be held by the board on trust for such purposes relating to hospital services or to the functions of the board under this Part of this Act with respect to research as the board think fit, and the board may dispose of any property comprised in those endowments and hold the proceeds thereof on trust for any of the said purposes:

Provided that the board shall, so far as practicable, secure that the objects of any such endowment are not prejudiced by the provisions of this section.

(7) All rights and liabilities acquired or incurred, whether by the governing body or by trustees, solely for the purposes of managing any endowment of a voluntary hospital to which the last foregoing section of this Act applies, being rights or liabilities to which they were entitled or subject immediately before the appointed day, shall—

1. (a) if the hospital has before that day been designated as a teaching hospital or is one of a group of hospitals so designated, be transferred to and vest in the board of governors of the teaching hospital on that day by virtue of this Act;
750
2. (b) in any other case be transferred to and vest in the Minister on that day by virtue of this Act.

4.14 p.m.

THE LORD CHANCELLOR moved to leave out the proviso in subsection (2). The noble and learned Lord said: My Lords, your lordships will see that I am inserting these lines, and a good many more, at a later place in the Bill—namely, on page 7, line 46, after subsection (6). I am doing the best I can to meet the wishes of your Lordships and the undertaking of the Minister, that so far as possible he would see that the objects of the trust are carried out, and that the wishes of the donors who founded the trust are observed. We will discuss that when we come to it, but in order to make room for the proposed new words at a later place I have first to take out these few lines. I beg to move.

Amendment moved— Page 6, leave out lines 34 to 36.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to insert the following proviso at the end of subsection (4): Provided that, where an endowment is given after the passing of this Act and before the appointed day, whether to the governing body of the hospital or to trustees, upon trusts which provide either—

1. (a) for the administration of the property as a capital fund separate from the general funds of the hospital; or
2. (b) for the application of the property for some specific object distinct from the general purposes of the hospital and involving expenditure of a capital nature;

the endowment, instead of being transferred to the Minister and the Hospital Endowments Fund as aforesaid, shall on the appointed day, by virtue of this Act, be transferred to and vest in the hospital management committee constituted under the following provisions of this Part of this Act for the hospital or for the group of hospitals in which it is comprised, and shall vest in that committee free of any trust existing immediately before the appointed day, and shall be held by the committee on trust for such purposes relating to the hospital services or to the functions of the committee under this Part of this Act with respect to research as the committee think fit, and the committee may dispose of any property comprised in any such endowment and hold the proceeds thereof on trust for any of the said purposes.

The noble and learned Lord said: My Lords, this Amendment refers to the same clause—page 7, line 5. The object of it is to meet a wish which was generally expressed by your Lordships, and which, I confess, appeared to have much force in it; that was, to put gifts made between the passing of the Act and the appointed day in the same position as if they had been made after the appointed day. May I say here, that we certainly want charitably-disposed people of their benevolence to go on helping us. Treasury control always has to be rigorous. It is right that it should be. After all, we are all taxpayers, and we expect to see that where possible money is saved. The running of a hospital on strict lines means that many little comforts and amenities will not be provided, although they will be provided if those who are charitably-minded come forward as they have done in the past. I did feel that there was a danger that people would not give their money between the passing of the Act and the appointed day, if they knew that their money would be taken away from the particular hospital in which they were interested and carried over to a general fund. By the insertion of these words we shall avoid that. The net result is that money devoted to a particular hospital, a capital sum given in this interval of time, will remain available for that hospital, or group of hospitals, at the appointed day. That being so, there is every inducement to the charitably-minded to give to that hospital. Accordingly, I beg to move.

Amendment moved— Page 7, line 5, at end insert the said proviso.—(The Lord Chancellor.)

LORD LLEWELLIN

My Lords, those of us on this side of the House who pressed this point on the Committee stage are very much obliged to the noble and learned Lord for the Amendment he has moved. On the Committee stage he said that what we were asking was not unreasonable, but he asked that I should not press my Amendment then and that I should let him consult the Minister to see if he could obtain authority to devise, between then and the Report stage, some form of words which he would discuss with me. If I may say so, the noble and learned Lord has been as good as his word. We are very much obliged to him. I thought that this was an important point, because otherwise if a person had added a codicil or other provision to a will to leave something to a hospital, he might well say: "I will cancel this. I will not risk dying before the appointed day. I want this to go to a particular hospital." Now, such a person can leave that proviso in the will, and the money will go to that particular hospital, just as it would have done if the person had died after the appointed day. It may mean quite a lot of difference to a vast number of voluntary hospitals and teaching hospitals that this Amendment has been accepted by the Government. We have done a good turn for the hospital services generally, in pressing this upon the Government, and in this Amendment the noble and learned Lord on the Woolsack and the Minister of Health have done a good turn to the hospitals.

THE MARQUESS OF READING

My Lords, we, too, were very much concerned with this matter, and very anxious that the difficulties should be cleared up. I would only add our thanks to those expressed to the noble and learned Lord, and to the Minister, for so fully meeting the original objection on this point.

THE EARL OF DONOUGHMORE

My Lords, might I, as chairman of a hospital which has the advantage of having the noble Lord, Lord Llewellin, on its council, say that this point is one which has given us considerable anxiety? As one of the ordinary rank and file of hospital managers I am very grateful to the noble Lord, Lord Llewellin, and to the noble and learned Lord, the Lord Chancellor, for the happy termination of an interesting discussion.

On Question, Amendment agreed to.

VISCOUNT MAUGHAM had given Notice of an Amendment to add to subsection 4: Provided that, in the case of any endowment of which a special application or appropriation shall have been directed or declared by the donor, the Minister shall, so far as practicable, secure that the directions of the donor shall not be prejudiced by the provisions of this section.

The noble and learned Viscount said: My Lords, I, too, am very interested in this question of charity, and I am afraid that I have inflicted on your Lordships more than one speech relating to the point. I have always realized that there would be great difficulty in the Government taking over these endowments, subject in all respects to the trusts which related to them. Therefore, I was not unwilling to meet the Government by inserting in the Amendment which I originally suggested, the words "so far as practicable." There may be trusts which the Government cannot very well carry into effect under the altered circumstances, but the Amendment which I moved, and which. I have repeated on the paper before your Lordships, is one which is, in effect, carried out by the Amendment following mine on the Paper in the name of the noble and learned Lord, the Lord Chancellor, at page 7, line 46. He there proposes to insert a proviso which will apply both to the teaching hospitals and to the non-teaching hospitals. The former, of course, were to some extent protected by the proviso on page 6, line 34. The matter with regard to the non teaching hospitals is also covered by the Amendment which I have suggested, and which is now included in the Amendment of the noble and learned Lord, the Lord Chancellor. In those circumstances, I shall not move my Amendment now.

4.20 p.m.

THE LORD CHANCELLOR moved, after subsection (6), to insert the following new subsection: (7) Every board of governors and hospital management committee shall, in the case of any endowment transferred to them under this section, and the Minister shall, in the case of any endowment transferred to him and the Hospital Endowments Fund under this section, secure, so far as is reasonably practicable, that, the objects of the endowment and the observance of any conditions attaching thereto, including in particular conditions intended to preserve the memory of any person or class of persons, are not prejudiced by the provisions of this section.

The noble and learned Lord said: My Lords, I am grateful to the noble Viscount, Lord Maugham, who has just spoken. I have no doubt that the Amendment which I have put down goes a good way to meet the suggestion he made. I hope that by the insertion of these words I have been able to meet your Lordships' wishes. I feel very strongly that it would be wrong to interfere more than we can possibly help with the wishes of people who have given money to hospitals. Where money has been provided as a memorial or for some such purpose, as far as possible it should be utilized for that purpose. Of course, there must be a certain amount of latitude. Sometimes money may have been devoted for a specific purpose which now becomes the duty of the Government. In that case no doubt you will have to apply what I think is called the cy-prés doctrine rather generously and use money specifically left for some purpose as near as possible to the purpose for which it was left.

I have been accused of all sorts of conduct about this endowment business. I have been likened to a body snatcher and I have had letters from some of your Lordships suggesting that my morals are appallingly bad. Well, I always knew my morals were patchy! But I confess that on this particular topic I do not feel I have acted badly at till. May I just tell your Lordships why? Let us assume you have two parallel hospitals, each of them, let us say, requiring £10,000 a year to run; one has an income of £5,000 and the other no income at all. If we had said to the hospital with no income, "We will give you £5,000," and if we had said to the other hospital, which has an income of £5,000, "We will give you £5,000," it would have cost the Treasury only £15,000 and no one could have said we had been guilty of any immorality. What we have done in fact is this. We have taken away that £5,000. We are going to give each hospital £10,000 (which costs £20,000) and we are dividing the £5,000 between the two hospitals. If it becomes a question of good or bad morals, I must say in this particular respect (I limit it to this particular respect) I think my morals are above reproach. I hope that having said that, your Lordships will agree I have done the best I can to give effect to what I think is the wish we all have—namely, while seeing that these hospitals are properly and anciently run, nevertheless seeing at the same time that the wishes of the persons who gave money to these hospitals are not disturbed more than is possible to make the hospital efficiently run.

Amendment moved— Page 7, line 46, at end insert the said subsection.—(The Lord Chancellor.)

VISCOUNT MAUGHAM

My Lords, this is an Amendment to which I have already referred and which I think ought to be, and may properly be, accepted by the whole House. It does, I think, substantially carry out the aims which we have in view, and, without admitting or agreeing to the argument which the noble and learned Lord on the Woolsack has put forward as showing the rightness of his motives and the integrity of his morals —which I should be the last to attack—I am perfectly content with this subsection which seems to me to carry out my object. I see no objection to the only new word in it, namely the word "reasonably" which is inserted before the word "practicable." "Practicable" in this context means reasonably practicable, and I am quite content with that slight emendation. In these circumstances, I thank the noble and learned Lord for his assistance in this matter. I would add also that I congratulate the Government in not allowing this Bill to become law with the fair imputation which might have been made against it, that it had destroyed a vast number of charitable objects which had been laid down over a long series of years.

LORD LLEWELLIN

My Lords, I was also one of those who pressed this matter on the Government, and who felt extremely strongly that, where possible, one should continue to use money for the object for which it was given, and particularly should continue the use of the name in the case of a war memorial to a hospital or some part of a hospital given in memory of some deceased person who had either worked there or who had been treated there. Therefore, I am much obliged to the Government for accepting the views that were put before them, and for putting down an Amendment which I think meets us in the fullest possible way.

THE MARQUESS OF READING

My Lords, this debate is becoming a battle of flowers with bouquets flying in all directions and, on the whole, attaining their proper objective! As we took considerable interest in this particular aspect of the Bill both on Second Reading and in Committee, I would just once more add a word of thanks to the Government for having met us, and say also that on Committee stage, while certainly on this side of the House we were generally agreed as to what we wanted, we also thought that the draftsman might have some considerable difficulty in putting it into a form in which it could appear on the Statute. If I may add one more bouquet, it would go to the draftsman who has very ingeniously discovered a solution which is acceptable to the whole House.

LORD SALTOUN

My Lords, the Amendment moved by the noble and learned Lord meets an Amendment which I moved in the Committee stage, and I am also much obliged to him.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved after paragraph (a) of subsection (7), to insert: (b) if the endowment is transferred to and vested in a hospital management committee by virtue of this Act, be transferred to and vest in that committee on that day by virtue of this Act. The noble and learned Lord said: My Lords, this Amendment is consequential, as are the next two, on the Amendment we have already passed. I beg to move.

Amendment moved— Page 8, line 11, at end insert the said paragraph.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move this Amendment which is consequential.

Amendment moved— Page 8, line 23, after ("hospital") insert "or (in the case of an endowment which would be transferred to a hospital management committee) that committee").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the other consequential Amendment.

Amendment moved—

Page 9, line 30, at end insert: ("(b) if the endowment would have been transferred to the hospital management committee, transfer the property to that committee")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 12:

Functions of boards and management committees.

(2) The hospital management committee of any hospital or group of hospitals shall exercise on behalf of the Regional Hospital Board for the area in which the hospital or group is situated, in accordance with regulations and such directions as may be given by the Minister or the Regional Hospital Board, such of the functions of the Board relating to the control and management of that hospital or group of hospitals as may be prescribed.

(3) It shall be the duty of the board of governors of every teaching hospital, as from the appointed day in accordance with regulations and such directions as may be given by the Minister, generally to manage and control the hospital on behalf of the Minister, and in particular—

4.29 p.m.

THE LORD CHANCELLOR moved to leave out subsection (2) and insert: (2) It shall be the duty of the hospital management committee of any hospital or group of hospitals, subject to and in accordance with regulations and such directions as may be given by the Minister for the Regional Hospital Board, to control and manage that hospital or group of hospitals on behalf of the Board, and for that purpose to exercise on behalf of the Board such of the functions of the Board relating to that hospital or group of hospitals as may be prescribed.

The noble and learned Lord said: My Lords, the alteration I am making here follows upon a suggestion made during the Committee stage and, like most of these other matters, it is fair to say that it is precisely in accord with the undertaking which the Minister gave. What I am proposing to do is in the first place to leave out subsection (2) which deals with the power of the hospital management committee, and to insert some other words. It is a difference of emphasis and a difference of form, but the criticism levelled against the Bill as drafted was that whereas in the first subsection of Clause 12 you set out with precision the duty of the Regional Hospital Board, and in subsection (3) you set out with precision the duty of the board of governors of a teaching hospital, in subsection (2) you did not really say what the hospital management committee had to do. That is true; we intend to deal with that matter entirely by regulation. I told your Lordships that we were anxious there should be the very greatest measure of devolution and decentralization; I believe that to be essential to the working of the Bill. Your Lordships said, not unnaturally, you would like it in the Bill. Accordingly, I have endeavoured here to draft some words which combine these two things.

First of all, I must make it plain that whatever the hospital management committee does they are to do on behalf of, and under the control of, the Regional Hospital Board. That is essential to preserve our chain of authority. Secondly, I want to establish on the face of the Bill so far as I can that they are going to have a real job of work to do. I have tried to combine these two features, and they are not easy to combine, in these words. I hope your Lordships will think I have gone some way to satisfy what is desired. I beg to move.

Amendment moved— Page 15, line 30, leave out subsection (2) and insert the said new subsection.—(The Lord Chancellor.)

VISCOUNT MAUGHAM

My Lords, I should like to say one word about this because I think it is a matter of some importance. I do not myself think that this new Amendment does entirely carry out the desires of people who have the interests of the hospital management committees at heart. But I do think it is quite possible that with the assistance of this subsection the regulations and directions which may be given by the Minister would carry out their desires. Prima facie, if you are acting on behalf of somebody else you have got to consult that somebody else whatever you do, and to act in accordance with their directions; and, Prima facie, if you are keeping the hospital management committees merely as agents of the Regional Hospital Board they might not be able to do anything at all without consulting the Regional Hospital Board. That is what the committees do not like, and that is what they did not wish to be the case after the Bill becomes an Act of Parliament.

I do not believe that that is the intention of the Government, and although this subsection does not exactly carry out their wishes, I think we may accept what the Government have said in the matter as an inducement to the person who frames the regulations and directions to frame them in such a way that all the every-day work of the hospitals—the appointment and dismissal of the ordinary servants of the hospital and all the jobs of that kind—will be, by devolution, the business of the hospital committee and will be carried out by them without constant appeals either to the Board or to the Minister. It is on that understanding, assuming it to be right, and the noble and learned Lord on the Woolsack says it is right, that I think we can accept this Amendment in the form in which it is moved, leaving what I regard as almost the most important part of it to be carried out by regulation in the spirit which I have mentioned.

LORD LLEWELLIN

My Lords, I would like to say a word on this. A lot of us on this side of the House, and I believe in all quarters of the House, were much concerned with the fact that you were going to set up hospital management committees without, on the face of the Bill, giving them any functions whatever to perform. A lot of us thought that that would not ensure your getting the best people to continue to serve on these committees. In the course of the discussion it was pointed out by the Government spokesman that they were, in fact, going to be given the powers in (a) (b) and (c) of the first part of this clause. Even then we thought something ought to be put on the face of the Bill that they were really going to be the people who controlled and managed the day-to-day affairs of the hospital. We therefore drafted the Amendment which was discussed at length on Committee stage and which would have had more or less that effect.

For myself, I am quite satisfied that what the Government have done to meet us in the new clause does show, on the face of the Bill, that the committees are to be given the control and management of the hospitals. Naturally, those who have taken an interest in this matter will scrutinize the regulation when it appears and if it contains, as no doubt it will, what was said by the Government spokesman it will contain, then I think it will satisfy us. But those who have been critical on this point, will obviously scrutinize it to see that it does so. Whatever the regulations contain, I think it is as well to have it stated in the forefront of the Bill that these men are going to have the control and management of the hospitals; otherwise you will not have the best people to serve on these bodies. I am satisfied with this, and I am very much obliged to the Lord Chancellor and the Government for meeting our wishes so fully.

On Question, Amendment agreed to.

4.36 p.m.

THE LORD CHANCELLOR moved, in subsection (3), to insert: (a) to provide for the university with which the hospital is associated such facilities as appear to the Minister to be required for clinical teaching and research.

The noble and learned Lord said: My Lords, the noble Lords, Lord Moran and Lord Horder, whose joint pressure I found irresistible, asked me to put in something about the teaching hospitals to show that one of the duties of a teaching hospital is to teach. Of course it is, and therefore I have decided to put it in the very forefront of the list of obligations because, of course, that is for the future. Unless the teaching is properly done the whole art and skill of the profession will go. I could not, however, adopt the suggestion of their Amendment that we were bound to carry out whatever the university liked to order us to carry out because even universities may have rather large and ambitious ideas. The Amendment says "such facilities as appear to the Minister to be required for clinical teaching and research." I beg to move.

Amendment moved— Page 15, line 42, at end insert the said paragraph.—(The Lord Chancellor.)

LORD LLEWELLIN

My Lords, I notice that none of the noble Lords who spoke in support of this last time—Lord Moran, Lord Horder, and Lord Cherwell—are present with us to-day, but a lot of us were anxious to see this put in the forefront in respect of the duties of the teaching hospitals. I quite agree with the noble and learned Lord on the Woolsack that the Amendment as moved in Committee—that the teaching hospital would have to do everything required by the university with which it is associated—was not one which anybody could reasonably accept. This seems to meet the point admirably, and I certainly know that on behalf of the noble Lord, Lord Cherwell, I can thank the noble Lord for including it. I assume of course that the (a), (b) and (c) of the subsection will be consequential without any Amendment in this House.

On Question, Amendment agreed to.

Clause 13 [Legal status of boards and management committees]:

4.40 p.m.

LORD LLEWELLIN moved to insert at the end of the clause: (2) A Regional Hospital Board, board of governors or hospital management committee shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the discovery or production of documents, but this subsection shall be without prejudice to any right of the Crown to withhold or procure the withholding from production of any document on the ground that its disclosure would be contrary to the public interest.

The noble Lord said: My Lords, I now come to a point upon which I moved an Amendment on the Committee stage. It is quite true that I moved it at another place in the Bill, but it is obviously better in Clause 13 which, as its heading shows, includes the "Legal status of boards and management committees." These boards of governors and hospital management committees, notwithstanding that they may be exercising functions on behalf of the Minister, may be entitled to sue or be sued. That was one part of the matter. However, I myself was not at all satisfied that they would be bound to give disclosure of documents and to produce documents in the cases of litigation to which they might not themselves he party: that is, a case where perhaps a surgeon or some other person is sued in respect of something that took place in the hospital and the records are in the hands of the hospital. Therefore I move this Amendment, the first part of which shows quite clearly that the hospital board, the board of governors or the hospital management committee cannot claim any privilege of the Crown in respect of the discovery or production of documents. That is laid down quite clearly, so that the position remains where it is if the House accepts the first part of the Amendment. That will preserve the inherent right of the subject to get disclosure and production of documents as he had before the hospitals were vested in the Minister.

I now come to the second part. With the hospitals vested in the Minister there may well be occasions when something serious may have taken place in the hospital and the Minister, possibly arising out of a question in either House of Parliament, has to send down an official from the Ministry; or there may be some private minute in the Ministry itself referring to that particular incident. Nobody—at any rate, nobody who has been a Minister of the Crown—would wish to take away the inherent right of the Minister to claim privilege for a document which is a private report made by a Ministry official for the use of senior Ministry officials and for the use of the Minister himself. The thing becomes fantastic if you do not have that provision in. Any inspecting officer who goes down would otherwise always be bound to come back and give merely an oral report. He might have to report orally, going up the chain of the Civil Service, to three or four different people, and finally perhaps to the Minister himself. That would be quite unworkable in the ordinary administration of a Government office. Just as it is vitally important to preserve the inherent right of the subject to get the documents that are part of the case, so is it equally important to preserve the inherent right of the Minister to protect those documents which, but for the vesting of the hospitals in the Minister, would never in fact have come into existence, because they are confidential reports from the point of view of the office answering a Parliamentary question, or using them for whatever purpose they may be required.

It is important to have this in. I know from experience—because in one or two cases I had to give the certificates—what tremendous care is taken by a conscientious Minister before he gives a certificate that a document ought not to be produced in the public interest. In a case of this sort, since the case in which I think my noble and learned friend presided in the House of Lords, the Minister has to give the certificate personally, and I think that is right. That means that the advice about it comes up from a permanent civil servant in his Department. In nearly every case, if there is a legal adviser it comes through the legal adviser in the Department; in a very large number of cases the matter is also looked at, before the Minister gives his certificate, by the Treasury Solicitor himself; and sometimes it is looked at by one of the Law Officers of the Crown, the Attorney-General or the Solicitor-General, to whom reference has been made for advice.

I have no fear myself that by putting in the second part of this Amendment I am in any way prejudicing the subjects in their rights. I believe these things will only be withheld in cases similar to one in which I once withheld documents from a civil court, where a man was being sued for libel, if I remember rightly, and one side wanted to get from me a confidential report from one of the food officers to his divisional food officer. That report was entirely confidential; it had nothing to do with the case and obviously had to be protected. Otherwise nobody would speak the truth if it was at all unpalatable to any person who might be able to get discovery of it. I therefore beg to move this Amendment. I think the first part of it reserves the right which we all wish to see preserved; the second part is only a proviso and preserves those documents which I have said it is necessary to preserve from time to time. I beg to move.

Amendment moved— Page 16, line 15, at end insert the said subsection.—(Lord Llewellin.)

THE LORD CHANCELLOR

My Lords, I confess that I do not myself think these words are necessary, because I think the first and second part of the Amendment will be the law if we pass the Bill as it stands. However, as my noble friend Lord Llewellin and many other very experienced persons have expressed apprehension and doubt about that, I think it better that we should remove the apprehension and doubt. I therefore have much pleasure in saying that I will accept this Amendment.

On Question, Amendment agreed to.

VISCOUNT SIMON

My Lords, with regard to Clause 13 I am sure the Government have satisfied themselves as to the source from which these bodies, the hospital management committee and the boards of governors, will get the funds with which to meet these liabilities if they become liable. I do not invite a discussion about it, but it is important to ensure that there is a source from which they will get those funds. I appreciate that the Minister has the duty of providing the money to pay for the nurses, but if a nurse was carelessly to injure a patient, and the patient sued for damages, from what source would the damages come?

THE LORD CHANCELLOR

I think it is obvious that they will come from the Minister. They are acting on behalf of the Minister. The effect of Clause 13 is that they are to be liable as though they were acting as principals, but in effect they are acting on behalf of the Minister.

Clause 16:

Research.

16.—(1) Without prejudice to the general powers and duties conferred or imposed on the Minister under the Ministry of Health Act, 1919, the Minister may conduct, or assist by grants or otherwise any person to conduct, research into any matters relating to the causation, prevention, diagnosis or treatment of illness or mental defectiveness.

4.50 p.m.

THE LORD CHANCELLOR moved in subsection (1), after "1919," to insert "and the duties imposed on the Committee of the Privy Council for Medical Research under the said Act." The noble and learned Lord said: My Lords this is a point which occurred to us as one which ought to be dealt with. We have referred to the Act of 1919 and we have said "Without prejudice to the general powers and duties conferred or imposed on the Minister under the Ministry of Health Act, 1919" In fact, that same Act also imposed duties on this Medical Research Committee of the Privy Council. Of course, if we expressly preserved the powers of the Minister and said nothing about the powers of the Privy Council, it might look as though we were leaving them out. That is not our intention and consequently we want to rectify it by putting in these words. I beg to move.

Amendment moved— Page 17, line 45, after ("1919") insert the said words.—(The Lord Chancellor.)

LORD LLEWELLIN

My Lords, I am very ignorant about these matters, but does the Privy Council in fact ever do anything about this?

VISCOUNT ADDISON

Before the passing of the Ministry of Health Act, 1919, the Medical Research Council was responsible to the Insurance Commission. That Commission was then incorporated into the Ministry of Health, but it was felt to be very undesirable that an independent Research Council of this kind should be departmentalized, and therefore its duties were transferred to the Privy Council.

LORD LLEWELLIN

The responsible Minister is the Lord Privy Seal?

VISCOUNT ADDISON

No, the Lord President.

On Question, Amendment agreed to.

Clause 19 [Local health authorities]:

4.53 p.m.

LORD ADDINGTON moved, at the end of subsection (3), to insert: (4) On the application of the council of a borough a local health authority being the council for the county in which the borough is situate may, with the consent of the Minister and, if so required by the Minister, shall delegate to the council of the borough either without restrictions or conditions or with restrictions or conditions approved by the Minister any functions of the local health authority under the provisions of this Part of this Act relating to the care of mothers and young children, the employment of midwives, health visiting, home nursing, vaccination and immunisation, ambulance services, the prevention of illness, care and after-care and domestic help. (5) Any expenses incurred by the council of a borough in the discharge of functions delegated to them under this section shall up to an amount not exceeding such sum as may be fixed by the local health authority or on an appeal by the Minister be repaid to the council of the borough by the local health authority.

The noble Lord said: My Lords, this Amendment deals with the question of delegation, to which we referred at some length on the Committee stage, and it differs somewhat from the Amendment which was moved and discussed then. First of all, it has been provided that the consent of the Minister is required to any and every delegation of powers. That was one of the main points that was raised and which was thought necessary in that discussion. Secondly, as the approval of the Minister is required to any restrictions or conditions subject to which powers are delegated, the former subsection (5), which provided a method of appeal to the Minister by an aggrieved borough, has been omitted. Further, in view of the Amendment accepted by the House in Committee,, the reference to metropolitan boroughs has also been omitted. It is still left to a non-county borough to ask for the delegation of just those functions which they consider they can usefully perform. In addition, it has been provided that the Minister, may if he thinks fit, require a county council to delegate some of their functions to a borough council. Some of these borough councils are not really such minor authorities—a point which was, I think, discussed by the noble and learned Viscount on the Committee stage. There are about fifty of them, with populations in excess of 50,000 and about twelve of these have populations in excess of 100,000. Those borough councils have, therefore, populations in excess of some county councils—I think it is fourteen—and also in excess of some county borough councils who have these powers.

The Amendment would, therefore, give those non-county boroughs who felt justified in asking for it—and with the approval of the Minister—a substantial voice in the day-to-day management of these health services, but the services would not be taken away from the county councils. The county councils would still retain general control; they would also lay down policy and they would be in absolute control of finance. Without this Amendment, no delegation would be possible to any non-county borough, however desirable it might be found to be at some subsequent date. The main object is to ensure that those elected representatives who are placed in membership of borough councils by the electors of the boroughs should have the fullest opportunity of management of the services provided for the inhabitants, and also to ensure that they may draw in and strengthen the voluntary spirit and the voluntary service so necessary in the interests of the nation and for the success of these services. I venture to hope that this Amendment will be accepted. I beg to move.

Amendment moved— Page 19, line 3, at end insert the said sub-sections.—(Lord Addington.)

LORD O'HAGAN

My Lords, I should like to support what my noble friend Lord Addington has said with regard to this Amendment. The force of his remarks is very great indeed. I have no doubt that the entrusting under these conditions, of work of this nature would be a means of strengthening the administration in a very satisfactory way, but I should like to remind your Lordship, as I pointed out on the Committee stage, that to include the borough councils and not to include at any rate a portion of the urban councils, would really be entirely contrary to the policy which Parliament has pursued for many years past, where, equally with the borough councils, powers have been given to the urban councils. Though there are a number of small ones, as in the case of the borough councils, there are also a very large number of large, well-administered and efficient urban councils who represent no small populations. There are 117 urban councils with a population of over 20,000, and quite a number of them with a population of over 50,000. If the Government are inclined to agree to the very reasonable Amendment which has been put forward, I trust that they will also see their way to include the urban councils on the same conditions and in the same manner as is suggested by my node friend Lord Addington.

LORD LLEWELLIN

My Lords, one of the three occasions on which this House divided on the Committee stage was on an Amendment by my noble friend Lord Balfour of Burleigh, me king it mandatory on the London County Council to devolve these powers, or certain powers, on the borough councils of London. There is a lot to be said for that because if one looks at the populations of some of these London boroughs one finds they are very much larger than those of a great number of county boroughs in this country. There is a great deal to be said for having that decentralization in London and perhaps for having it made mandatory, but at the present moment, unless this Amendment proposed by my noble friend Lord Addington be accepted, we shall send this Bill back to the other place having made an Amendment making it mandatory on the London County Council to do this in regard to their boroughs, but giving no power to any other county council, even with the assent of the Minister, to devolve any of these functions on local borough councils in the country as a whole.

It seems to me that whatever may be said for London, this at any rate is right. It is not mandatory; it is only permissive. If the borough councils ask for it and if the county councils ask for it, the Minister may allow them to do it. In some cases it may be quite right, and in the best interests of the health service, to devolve these functions from the county council to the borough council, especially if it is a large and efficient one. Therefore, I hope that at this stage—and I do not put the matter higher than this—the noble and learned Lord will say that this is acceptable to the Government, so that if another place sees fit to accept our Amendment on the London position this may flow with it over the country as a whole. If, on the other hand, they did not see their way to accept the London one, it might be possible for the Minister to see his way to accept this, because it does leave the ultimate sanction in every individual case in the Minister's own hands. For those reasons I support the Amendment which has been moved by the noble Lord. I listened, as I always do, with great interest to the speech by the noble Lord, Lord O'Hagan. I notice that there is no Amendment this time to include urban district councils. I suspect that if they were put in it would make it very much more difficult for this Amendment to be accepted, and in fact I am not at all certain that I should go as far as that. I do hope that in this case this permissive power will be allowed. In some special cases it may be a very necessary thing to do and there should be power to do it on application to the Minister.

THE MARQUESS OF READING

My Lords, I took a very definite view in regard to the proposals contained in the noble Lord, Lord Balfour of Burleigh's Amendment which had their application confined to the London County Council and the metropolitan boroughs, but on the analogy of that Amendment I quite agree with what my noble friend Lord Llewellin said. It is rather an invidious position if we have permission in the one case and mandate in the other. I do suggest for the Government's consideration that we should follow the advice just tendered and accept this Amendment for the moment, with the idea of bringing the whole thing into line at a later and more convenient stage.

THE LORD CHANCELLOR

My Lords, I am very sorry, but I cannot possibly accept this Amendment. This is a topic on which I feel very strongly, and have done for the last four years. It was a topic on which the Coalition Government felt strongly, and it is a topic on which the present Government feel strongly. There was not one single Minister in either of those Governments who had any doubt about this thing at all. If you are having, as you are, local authority services in any area, you must have one local authority and not several local authorities in that area responsible for those services. I am absolutely certain that that is a vital principle. I am very much opposed to the Amendment moved by the noble Lord, Lord Balfour of Burleigh. He proposes to pick out from the various local health duties some of them, and some of them only, and in all the London boroughs, if his Amendment becomes law, you will have two authorities, some working in some services and some in another, and all of them to be carried out in a health centre. I believe that is absolutely chaotic.

I sympathize with the noble Lord who has moved this Amendment. If you have this sort of thing in London he may fairly say, "Well, why not in the country?" We had referred to us the size of these London boroughs. What about Harrow, just outside London? I will not guess, but I think it has a population of 40,000 or something of that sort—anyhow it is an enormous place. They may fairly say, "Why on earth if Shoreditch has this right should not we?" I believe it to be very wrong, and I should be most reluctant to touch it at any time or to further it. As I have said, that has been the view of all my colleagues in this Administration and the last. You may say—and the noble Lord does say—"Well, this is only permissive; it is only if the Minister authorizes it, or it is in some senses compulsory if the Minister can order it to be done" That infringes against another principle which I believe to be vital. Take your courage in both hands and do this thing one way or the other. Do not leave it uncertain so that you may in some cases have to do this, that and the other. If you do that you will find that there will be a constant coming and going and to-ing and fro-ing.

Political pressure will be put upon the people, and they will be asked to devolve powers instead of getting on with the job and making up their mind that these are their powers. In some cases where powers of this sort have been given, you will find that they have been slackly exercised just because it was thought that probably in the future they would be differently composed and they would decide to transfer them. There are no Party politics in this thing at all—there really are not. If we are going to make a success of this thing you must entrust this to the major authorities. You must make them responsible for the whole of the services in any area and not contemplate, as you do here, possible partition of some of the services vested in them. You must make them responsible for the whole of the services, and you must here and now decide what you are going to do. Do not leave it to the political agitation of the future as to who is going to have these powers. Take your courage in both hands, and say that we put these powers upon the major local authorities: there they are, there they stay, that is their job, and they cannot get out of it. I am sorry, but if I. were to manoeuvre and try to be clever about this thing and accept it for the moment I should be flirting with something I think to be thoroughly bad. I am sorry, but I cannot do it.

LORD ADDINGTON

My Lords, I am in the hands of the House. This is a permissive power and conditions are uncertain. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

5.6 p.m.

Clause 20 [Proposals for provision of services by local health authority]:

THE LORD CHANCELLOR

This Amendment relates to a point raised by the noble Marquess, Lord Reading. I beg to move.

Amendment moved— Page 20, line 33, at end insert ("and shall, not later than the day on which such recommendations are made, serve a copy thereof on the local health authority").—(The Lord Chancellor.)

LORD ADDINGTON

My Lords, this Amendment clears up a point in administration, and I am very grateful to the noble and learned Lord.

On Question, Amendment agreed to.

Clause 23:

Midwifery.

(2) It shall be the duty of every local health authority to secure, whether by making arrangements with voluntary organizations for the employment by those organizations of certified midwives or by themselves employing such midwives, that the number of certified midwives so employed who are available in the authority's area for attendance on women in their homes as midwives, or as maternity nurses during child-birth and from time to time thereafter daring a period not less than the lying-in period, is adequate for the needs of the area.

LORD LLEWELLIN moved, in subsection (2), after "with," to insert "boards of governors of teaching hospitals, hospital management committees or." The noble Lord said: My Lords, on behalf of my noble friend the Earl of Munster, I beg to move the Amendment standing in his name. At the present moment as the Bill is drafted: It shall be the duty of every local health authority to secure, whether by making arrangements with voluntary organizations for the employment by those organizations of certified midwives or by themselves employing such midwives… There are cases where midwives are attached both to teaching hospitals and the hospital management committees, and can go out from those hospitals to help with this work. It is in order to extend their scope and allow them, in appropriate cases, to make that arrangement with teaching hospitals or the boards of management committees of other hospitals, that we move to insert these words, so that the local health authority may make arrangements either with the voluntary organizations or with the two bodies set out in the Amendment. I beg to move.

Amendment moved— Page 22, line 42, after ("with") insert ("board of governors of teaching hospitals, hospital management committees or").—(Lord Llewellin.)

THE LORD CHANCELLOR

I am very happy to be able to accept this Amendment.

On Question, Amendment agreed to.

LORD LLEWELLIN

The next Amendment is consequential. I beg to move.

Amendment moved— Page 22, line 43, after ("those") insert ("boards, committees or").—(Lord Llewellin.)

On Question, Amendment agreed to.

5.10 p.m.

Clause 33 [Arrangements for general medical services]:

LORD LLEWELLIN moved, after subsection (2), to insert: ( ) Regulations prescribing the terms and conditions upon and subject to which any services would or could be required to be rendered by any medical practitioners under or in pursuance of the provisions of this Part if this Act shall be made not less than three months before the day which is the appointed day for the purposes of subsection (1) of Section thirty-four of this Act.

The noble Lord said: My Lords, on the Committee stage I raised the point that the doctors ought to be given ample time after their conditions were settled, in order that they might decide whether they desired to be included on the list or not, and I put down this particular Amendment at the Committee stage. I do not know whether at this stage some such words could be inserted or whether I could be given, on behalf of the Minister of Health, a definite undertaking that ample time will be given to the doctors. If you are going to have a good service, you must have a willing service, and if you are to have a willing service, you must give those coming into it—reasonable and intelligent men as they are—ample time to know what the conditions are upon which they are coming in. It may be that my Amendment might not work in practice, because if, after some further bargaining, a regulation had to be altered, even to the extent of crossing a "t" or dotting an "i" or putting in a comma, it might mean that the appointed date would have to be put off—when everybody would agree that it ought not to be put off. I think that an undertaking in the clearest possible terms that ample time will be given the medical practitioner to make his decision should be given. I hope that such an undertaking will be given if it turns out that the Government cannot accept this Amendment. I beg to move.

Amendment moved— Page 27, line 24, at end insert the said sub-section.—(Lord Llewellin.)

THE LORD CHANCELLOR

My Lords, I cannot accept this Amendment for the reason the noble Lord has himself given—that is to say, that when you promulgate your regulations you will almost inevitably find that you have made a mistake here or there. These errors may be quite small matters but you will want to correct them. If you said that the appointed date would not be for some definite period of time after the regulations were out and then you could not alter the regulations, that would be very unfortunate. But I can give the noble Lord the assurance for which he asks. In the course of the debate the other day I said—not having then referred the matter to the Minister—that in my view six months' notice was a reasonable sort of time at which we ought to aim. I am happy to be able to tell the noble Lord that the Minister agrees that we ought to aim at a period of six months so that the doctors can have ample time to make up their minds as to whether they are going to come in or not.

There is this kind of difficulty to be borne in mind. There may be some isolated case in connexion with which you do not know what you are going to pay. Might I cite as such a case that of a gentleman attending to obstetrics in the Scilly Isles. Such an individual would have to spend rather a lot of time on very rough seas, and no doubt he would require an extra high fee. There are some small points of that kind that might not be settled right away. Apart from such technical points, the broad outline of the whole thing must be known to the doctors in really sufficient time to enable them to consider what they are going to do. As I have said, in the view of the Minister six months should be the period at which to aim. I believe that we shall be able to agree about that, subject to such minor points as I have mentioned. Therefore, I do give to the noble Lord, in the most categorical way, the undertaking for which he asks.

LORD LLEWELLIN

My Lords, I ant very much obliged to the noble and learned Lord, and in view of that undertaking I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 34 [Distribution of medical practitioners providing services]:

THE EARL OF MUNSTER moved to add to the clause: (9) The Medical Practices Committee shall, in a case where persons have to be selected from a number of applicants, and the Minister shall, on an appeal in any such case, have regard to any desire expressed by any applicant to practice with other medical practitioners already providing general medical services in the area or part of an area concerned, and of any desire expressed by such other medical practitioners to take any applicant into practice with them, and shall have special regard to the matters aforesaid in cases where an applicant is related to any such other medical practitioner.

The noble Earl said: My Lords, I do not think I need trouble your Lordships for more than a few moments with this Amendment. During the Committee stage I moved a similar Amendment which, at that time, was in two parts. It has now been drafted to form one. I do not think there is any desire on the part of your Lordships that I should delay the proceedings of the House by explaining the intention of this Amendment, which is precisely similar to that of the one which I moved at the Committee stage. I beg to move.

Amendment moved— Page 29, line 27, at end insert the said sub-section.—(The Earl of Munster.)

THE LORD CHANCELLOR

My Lords, I am quite prepared to accept this Amendment as I have always taken the view that the members of the Medical Practices Committee are going to be sensible men, and I cannot doubt that sensible men will have regard to principles of this sort. That being so I see no harm in putting it down on paper and having it inserted ill the Bill. I accept the Amendment.

On Question, Amendment agreed to.

Clause 35:

Prohibition of sale of medical practices.

(2) Any person who sells or buys the goodwill or any part of the goodwill of a medical practice which it is unlawful to sell by virtue of the last foregoing subsection, shall be guilty of an offence: and shall be liable on conviction on indictment to a fine not exceeding—

1. (a) such amount as will in the opinion of the court secure that he derives no benefit from the offence; and
2. (b) the further amount of five hundred pounds;

or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

(4) Where in pursuance of any partnership agreement between medial practitioners—

1. (a) any valuable consideration, other than the performance of services in the partnership business, is given by a partner or proposed partner as consideration for his being taken into partnership;
2. (b) any valuable consideration is given to a partner, on or in contemplation of his retirement or of his acceptance of a reduced share of the partnership profits, or to the personal representative of a partner on his death, not being consideration in respect of past services of that partner or of property of that partner which is transferred or made available to the other partners or any of them for fair consideration; or
3. (c) services are performed by any partner for a consideration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the agreement was made:

there shall be (learned for the purposes of this section to have been a sale of the goodwill or part of the goodwill.

5.16 p.m.

VISCOUNT MAUGHAM moved, in subsection (2), to insert "knowingly" after "who" The noble and learned Viscount said: My Lords, this is an Amendment which is only a sort of relic of the various. Amendments I moved to try to amend this puzzling Clause 35. Certain noble. Lords have told me that they are not particularly interested in Clause 35 because they do not understand it. I can well understand that some of the subsections of that clause are, to a layman, quite unintelligible. But what I am left to endeavour to achieve—apart from a subsequent Amendment on page 31 on one particular point—is my desire that new crimes, whether for doctors or others, should not be invented by Acts of Parliament in this year of our Lord, unless it is perfectly plain that the person who is going to be accused of the crime knows that he is doing something wrong, and is accordingly what lawyers call mens rea, that is of a guilty mind, which according to our law applies to nearly every conceivable crime to be found on the Statute Book.

For some reason or other, which I do not understand, Clause 35 seems to be framed with a deliberate determination to depart from that principle. I venture to suggest that it is for the Government to give a particular reason why such a principle should be abandoned in the case of doctors who are at some date—whatever date it may be—entered on the list, people who are undertaking to provide general medical practices, and who find it necessary, or whose representatives find it necessary after death, to sell the goodwill of a medical practice to some other medical practitioner. If the only thing in the clause was a prohibition against such a sale I should care nothing about the word "knowingly," because you could not sell a practice in the ordinary way, any more than you can sell a pair of boots, without knowing that you are doing it. The trouble is that under four subsections of this Act there are laid down circumstances in which a practitioner shall be deemed for the purpose of the clause, to be making a sale to another medical practitioner. He may be quite unaware when he makes his sale, or does the acts referred to in the subsection, that he has committed a breach of the law.

For instance, there are occasions on which a medical man who has retired, for any reason, makes an arrangement with an incoming practitioner that the newcomer shall buy the appliances (which may be very expensive in these days) which the retiring man owns and wishes to get rid of, and as a result of this, some remuneration will, of course, be payable to the outgoing practitioner. Yet under this clause that may be deemed to be a "valuable consideration" which passes, at the time of the retirement of the first partner or practitioner, to the incoming medical man. The fact that £200, or something like that, is paid to the retiring practitioner is seized upon as being a consideration given on retirement, and, for the purpose of the clause, is deemed to be a sale of the goodwill. It may be a perfectly legitimate transaction; not a sale of the goodwill at all, but only a sale of the appliances. It may be very difficult to satisfy the tribunal before which the matter comes that it is really only a matter of the value of the appliances which the outgoing medical practitioner does not want any more.

Consider subsection (5). There are cases where a medical practitioner comes in and performs service as an assistant to somebody with a practice which has been going on for many years. It may be that the incomer has had no experience whatever, other than the slight experience which he has gained in a hospital, say, as a resident physician; he may even have had no such experience. It is impossible to know whether a man will make a good doctor, or be a good man in the neighbourhood, except by allowing him to practice. It may also be that the people who are taking a new man into the practice may say: "At present we can only give you a living wage. You come in, and we shall respectively be able to discharge or leave the other after a period of examination in which we can find out—you, whether you like the business and the practice, and we, whether we think you are any use to us in the matter." Yet, if the remuneration given to the person coming in as an assistant is substantially less than his services might be reasonably expected to be worth in all the circumstances, and if he is subsequently taken into the partnership, there shall be deemed, for the purposes of the subsection, to have been a sale of the goodwill, unless it is shown—and shown by the practitioner—that the remuneration of the new man was not fixed in contemplation of his succeeding to the practice. Unless that can be shown, such a sale, for the purposes of this subsection, shall be deemed to have been effected at the time when the remuneration was fixed.

It seems to me quite wrong that a doctor who has acted perfectly innocently in the matter, should have placed on his shoulders the onus of establishing that in all the circumstances the sum was reasonable, and wrong, too, that it should be for him to establish that the remuneration paid to the man coming in was a reasonable remuneration. If he fails, or if he is unable for some reason—it may be his own death—to show that the remuneration was not fixed in contemplation of a newcomer succeeding to the practice, then a breach of the clause is deemed to have been committed. There is deemed to have been a sale of goodwill and, unless the doctor is dead, he will be liable, either to a fine or to a term of imprisonment not exceeding three months, or to both fine and imprisonment.

I do not want to go all through these subsections, because there are a number of them. They are very curious, and I am willing to state my definite opinion that there are half a dozen ways in which a perfectly innocent practitioner may find that, in the opinion of some tribunal, he has committed a breach of one of these subsections, with the result that, quite unwittingly, he is liable as if he had committed a breach of subsection (1) to be fined, and perhaps imprisoned, accordingly. It is for that reason, that I want the word "knowingly" inserted. If the noble and learned Lord on the Woolsack is unable to assent to the word, I would at least ask him to explain how it makes any difference to the common sense of the matter, how it makes it easier for a practitioner to disregard the prohibition on the sale of goodwill?

There is only one other word I would say, because I do not want to detain your Lordships longer. It is not an excuse to say that the Government are exceedingly anxious to prevent evasions of this clause. If the result of a clause which is intended to prevent evasion is that it may catch perfectly innocent people, that is a condemnation of the clause. It is better that one guilty man should escape, than that other perfectly innocent people should be caught. That is the truth about the mistakes inherent in the subsections to Clause 35 as it now stands. It is for those reasons, and not with any desire of hurting the effect of this clause or of making the Act as a whole more difficult from the point of view of the Government, that I am repeating what I have said with reference to this Amendment. I am only a lawyer, and I do not consider myself much of a politician, but I have been engaged in law all my life and I should feel ashamed to permit the clause and the subsections of the clause to pass as they now stand, without protesting in the most vigorous manner. I beg to move the Amendment in my name.

Amendment moved— Page 29, line 39, after ("who") insert ("knowingly").—(Viscount Maugham.)

LORD SALTOUN

My Lords, may I just say one word in support of the Amendment? I do so on two grounds, both of which are professional. The first is that this question of goodwill is very often a matter of opinion in the mind of a practising accountant. You cannot always say what goodwill is and what it is not. Further, this goodwill is to be measured by something which is called a valuation. I think it is a rule that no competent valuer willingly values a hypothetical subject. He never feels happy unless he can test that subject in a market, and he will know that market. Here you have a sale that has actually taken place, and it is to be measured against a hypothetical sale in a hypothetical market. On those two grounds, therefore, it must be manifest that the court, in coming to their conclusion, will base their opinion—and it can only be an opinion—upon a question of goodwill, which may be spoken to by a chartered accountant, and be measured by a valuation which, like many valuations which occur under various Acts of Parliament, is not a true valuation, but what I might call an assessment and therefore is only a matter of opinion. I am very happy to think that miscarriages of justice very seldom occur in our country, but I think they occur sometimes, and they are never more likely to occur than when the court has to decide only on opinions. Therefore, I very respectfully ask the noble and learned Lord on the Woolsack if he will not very carefully consider this point and make quite sure that, if he cannot accept this word, the principle for which I am contending is given effect to in some way or other.

THE MARQUESS OF READING

My Lords, may I add one word in support to what the noble and learned Viscount has proposed? What troubles me about this clause is this. It is an extremely complex clause in its drafting, and perhaps has to be, because what the Government are trying to do is to prevent the out-and-out obvious sale of practices and also to ward off tire various subterfuges to which people may resort in order to dodge the obvious method but, at the same time, to arrive at the same illegitimate result. What troubles me about the absence of the word "knowingly" from this subsection is that you may get a doctor who has come to the age or the moment, at any rate, when he desires to cease practising. He is confronted by this provision which may cause him the very greatest mental doubt as to what his rights or wrongs are under it. He may even go the extent of getting the best advice, legal or medical, as to what his true position is, and he may guide his conduct entirely upon the basis of that best advice which he has taken the trouble to obtain; and yet it is perfectly open on this wording for a court to convict him of a serious offence, although not only had he no knowledge that he was committing an offence, but he had taken every reasonable step to assure himself that he was doing nothing of the kind. That seems to me impossible to justify.

THE LORD CHANCELLOR

My Lords, I am sorry I cannot possibly accept this Amendment. I think it would be quite wrong to insert the word "knowingly" in this subsection. If I may say so, it would only make the thing confused. We are considering whether we shall put in a word in subsection (2) and there are all sorts of different matters in subsections (3), (4), (5) and (6). The proposal to put in the word "knowingly" in subsection (2) is, I think, unnecessary, because a man does not sell or buy a goodwill in his sleep. He must know what he is doing, and the only effect of putting "knowingly" in would be to throw its light on the next words "which it is unlawful to sell," and it would be very silly to have a man saying: "I knew I was selling a goodwill but I did not know it was unlawful to sell the goodwill because I had not read Section 35 of the National Health Service Bill. I started reading the Act and stopped at Section 34." None of us want that and, therefore, there is nothing to be said for putting the word "knowingly" in there.

When we come to consider the other subsections in Clause 35—each stands by itself—it would be wrong to say the word "knowingly" does not appear. It comes in in subsection (3). In subsection (4) I am seeking to amend, and in subsection (5) you find that the onus is the other way round—"unless it is shown that the said remuneration of the first practitioner was not fixed in contemplation of his succeeding to the said practice.…" That comes again in subsection (6). I can imagine no better illustration of a device for selling goodwill than that mentioned by the noble Viscount—namely the selling of tools. A doctor might say, "Well, I am not selling the goodwill, but here are my tools, all my instruments. You must pay me £5,000 for those." That is a perfectly easy device for selling goodwill. But you cannot have people selling their goodwill when they are already getting £66,000,000 of our money as compensation for not selling.

I really must ask the noble Viscount to see that we do get some satisfactory way of stopping evasion. What none of the noble Lords have noted—particularly the noble Marquess who spoke last—is this, that a practitioner need not trouble to go and get expensive advice as to whether he is doing right or wrong. He has only got to go to the Medical Practices Committee and, if he reveals the full facts to the Medical Practices Committee, it will not cost him anything at all. He can say: "This is what I am doing. Am I right or wrong?" The Medical Practices Committee can give him a certificate and that absolutely protects him. That we thought was the best device we could have to protect the honest fellow and to prevent the other fellow getting through, and that is what we have done.

We are not really considering the other subsections at the moment, but I think it will be found, if you consider each by itself and see how it works, that it works quite well. I looked it through as I promised the noble Viscount I would. I went through this most carefully with my advisers as a result of his criticism, and entirely as a result of his criticism I have proposed an Amendment which I hope will satisfy him with regard, at any rate, to one of these subsections. I do think that to insert the word "knowingly" in this particular subsection is not necessary and would only be to make everybody think you were doubting the ordinary principle of ignorantia legis nominem excusat, and I think that would be a mistake. Therefore I am sorry I cannot accept this Amendment.

VISCOUNT MAUGHAM

It may be difficult to carry this matter any further, but I should say quite bluntly and frankly that I do not agree with the argument that the noble and learned Lord has just presented to us and in many respects I believe it to be absolutely without foundation. He has introduced items of prejudice which do not seem to me to have anything to do with the case with which we have got to deal here. He has talked about the £66,000,000 which we are giving. My Amendment does not touch that at all.

THE LORD CHANCELLOR

"Knowingly" does.

VISCOUNT MAUGHAM

My word "knowingly" has got nothing to do with that. All I am saying is: Let it be accepted that you cannot sell the goodwill of a practice, but do not let it be accepted that a doctor may be held to be selling it by virtue of some more or less unintelligible subsection here which has the result that, though he had not dreamt of selling his practice, he may be deemed to have done so. That, I suggest, is something which the noble and learned Lord has not met in his speech and which it is not possible to meet. Take the case of subsection (4) as an example of the sort of thing which may make a man liable to be held a criminal: Where in pursuance of any partnership agreement between medical practitioners…services are performed by any partner for a consideration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the agreement was made… A man may go into a partnership and afterwards from natural love and affection for a relative who may be a partner, or because he is a good fellow and thinks he will save his partner pain and trouble and work, he may perform services which are worth many times those which he might reasonably have expected to render. If he is doing a great deal more than the promise or that which it was thought he would do, then he is held for the purposes of this subsection to have been guilty of a sale of goodwill. That is only one of the many instances of the sort of thing which has been inserted in this very difficult and complex clause.

Comment has been made on the word "knowingly." It has been said that it would be wrong because it would refer to a person who did not know of the preceding subsection which made a sale wrongful. As a matter of construction I do not agree with that, but if it were so it is the easiest possible thing so to word this clause, by proviso or otherwise, that no man shall be held guilty of an offence under this subsection unless he is aware that he is doing the thing which is intentionally prohibited—namely, selling the goodwill, or some part of the goodwill, to another medical practitioner. As to the £66,000,000, that only applies to the people who are on the list on the appointed day. I am not arguing for them, I am not saying anything about them. I am dealing with the fact that this is for all lime a profession and the fact that men who have entered it are liable to extremely onerous provisions, including more or less unintelligible subsections as the Bill stands, without their knowing that they have done anything which is in any way wrong or objected to by the Legislature. If that is not changed I would advise the House to express its opinion on this matter.

On Question, Amendment negatived.

5.44 p.m.

THE LORD CHANCELLOR moved, in paragraph (b) of subsection (4), to leave out all words after "death" and insert: a payment in respect of that partner's share in past earnings of the partnership or in any partnership assets or any other payment required to be made to him as the result of the final settlement of accounts, as between him and the other partners, in respect of past transactions of the partnership.

The noble and learned Lord said: My Lords, this Amendment is the result of my pondering over the words which the noble Viscount who has just spoken used on a previous occasion, when he particularly dealt with this point. I have endeavoured to draft words to make it plain that anything done in the normal purpose of the winding up of a partnership such as, for instance, the payment of a retiring partner's share in the receipts of the late partnership, or his share in the assets such as furniture or equipment bought by the partnership, or other similar payments incidental to the final settlement of the partnership account, are not to be deemed, even in the first instance, to be a sale of goodwill. That is my endeavour to meet the criticism which the noble Viscount made on the previous occasion. I beg to move.

Amendment moved— Page 30, line 35, leave out from ("death") to the end of line 38 and insert the said new words.—(The Lord Chancellor.)

VISCOUNT MAUGHAM

My Lords, I think these words do remove one danger out of the very many dangers which I perceive medical practitioners will be open to meet if they want to retire from the business of a doctor. Accordingly, I accept them with such gratitude as the occasion calls for.

On Question, Amendment agreed to.

VISCOUNT MAUGHAM

had given Notice of an Amendment at the end of subsection (4) to insert: Provided that nothing in this subsection shall have the effect or be deemed to have the effect of rendering unlawful any agreement whereby any annual sum is made payable to the widow of a deceased medical practitioner other than one who shall have received compensation under the next succeeding clause or to". The noble and learned Viscount said: My Lords, this Amendment was drafted by me in the hope that one other common event in the medical and in many other sorts of practice would not result in a criminal prosecution. I am wanting to provide that if in a partnership, either in the original partnership or on the admission of a new partner, there is an arrangement under which an annual sum is made payable or, shall I say, an annuity is made payable to the widow of a deceased partner, then that is not an attempt at the sale of the goodwill for the purpose of the clause. I do not know to what the final words on the Paper—"or to"—relate. They seem to have dropped from Heaven or some other place and I disclaim them. I think the proviso as it stands makes it reasonably clear that you do not necessarily have anything to do with goodwill or the sale of goodwill if you are providing for the widow of a deceased partner either before he dies or when he dies, and that you really are not intending to sell the goodwill of the partnership. Unless these words are in I am afraid that in a medical partnership between two partners, one of whom is a very old gentleman, and the other of whom is comparatively young, it would be impossible to provide that something should be paid after the old gentleman's death to his widow. That seems to be an innocuous transaction and one that often takes place, and I do not think it ought to be within the mischief of Section 35.

Amendment moved— Page 31, line 13, at end insert the said proviso.—(Viscount Maugham.)

THE LORD CHANCELLOR

My Lords, I do not understand this Amendment. I cannot conceive where it ought to go into the Bill. The words "or to" may have dropped from Heaven, but I think they come up from another place because they caused me many a worry as to where on earth this Amendment was meant to come in. Perhaps it is better without the words "or to" but I wish I had known a little earlier. For the rest, I do not understand what the Amendment is doing. The object of this Bill, be it right or be it wrong, is to stop the sale of goodwill. One of the most common forms that a sale of goodwill takes is to pay the outgoing partner or his widow, as the case may be, a sum of money. That is the very thing which this Bill is intended to stop. Why the widow? Supposing a doctor has got his sister living with him, or supposing he has a daughter or a mother—we do not like to imagine other possibilities. Why should it be criminal to pay them and right to pay the widow? The object of this clause is to stop the sale of goodwill, and if a doctor comes along and says to the young man who is going to come in: "Look here, old boy, you need not pay anything to me, but you must enter into an agreement that when I die you will pay my widow £1,000 a year for the rest of her life," what is that but a sale of goodwill? It can be nothing else. This being a clause which, wisely or unwisely, seeks to stop this sale of goodwill, I am afraid I cannot agree to accept this very obvious form of sale of goodwill, and consequently I cannot agree to accept this Amendment.

VISCOUNT MAUGHAM

My Lords, there it is. The noble and learned Lord on the Woolsack says the transaction is a sale of goodwill. I, who have had, I am afraid, about twice as much experience as he has in matters of this sort, say it is not. I say it has nothing to do with the sale of goodwill. I say that when a medical practitioner dies there is in fact no goodwill attached to him which can be sold. That is why the position of a widow is different from any other case, the position of giving an annuity to people on any event other than the death of the practitioner in question. There is no other goodwill to sell; the man is dead. His personal influence has gone and he cannot introduce—

THE LORD CHANCELLOR

Will the noble Viscount forgive me for one moment? Supposing the transaction takes place before the man is dead, and the man who wants to come into the business while the doctor is still alive enters into an agreement that after the doctor's death he will pay a sum of money to his widow. That is the case I had in mind.

VISCOUNT MAUGHAM

That is a little bit more like a sale of goodwill.

THE LORD CHANCELLOR

That is what I am dealing with.

VISCOUNT MAUGHAM

Even so there would then be no sale of goodwill at all. In such a case you would be bargaining with a man on the footing that you were going to get his service during his lifetime, and you could not tell that there would be any transaction on his death which would enable the goodwill to be handed over to anybody. Any right of the nature of goodwill would have passed at the date when the partnership agreement was entered into. The widow is, I think, the person who in such a case is very likely to be necessarily provided for and is someone for whom all the parties would wish to provide. It is for that reason that I think the transaction which is included in my suggested proviso is perfectly innocuous. I am exceedingly sorry that the noble and learned Lord is unable to come to any compromise on that point.

On Question, Amendment negatived.

Clause 40:

Arrangements for general dental services.

(2) Regulations may make provision as to the arrangements to be made under the last foregoing subsection, and shall include provision— (b) for conferring a right, subject to the provisions of this Part of this Act relating to the disqualification of practitioners, on any dental practitioner, who wishes to be included in any such list, to be so included;

5.53 p.m.

LORD LLEWELLIN moved, in paragraph (b) of subsection (2), after "lists," to insert "or lists." The noble Lord said: My Lords, although I put down this Amendment, quite frankly I am not sure that it is entirely necessary. What I do want to ensure is that: it be made quite clear—it may be clear already if one looks at the Interpretation Act—that the dental practitioner may be on more than one list or, at any rate, may be on a list which is not necessarily in the area in which he happens to live and practise, or rather that people can go on to his list who do not live in his area.. Where the dental surgery is, say, in the market town or in the town to which the bus usually runs, I want the people who wish to go to the dentist to be able to go to him even though they do not live within the geographical limits of the area in which he happens to reside. If the words of the Act are wide enough to enable that to be done I shall be satisfied, but I think it is important from the patient's point of view to allow them to go to a dentist in the place where they usually shop or do their business, or whatever else it is that they do which calls them to that part of the country. I beg to move.

Amendment moved— Page 36, line 35, after ("list") insert ("or lists").—(Lord Llewellin)

THE LORD CHANCELLOR

My Lords, as the noble Lord has suggested, and as I suspect he knows the Amendment is quite unnecessary because by the Interpretation Act the word "list" does mean "lists." The noble Lord really put down his Amendment with the object of getting an assurance, which I now have pleasure in giving him. Having gone into this matter carefully, it is the fact that these dentists will be able to enter on two lists. They will not be confined to the precise limits of the geographical area in which their work is. They can go on to two lists, and consequently they will be able to attend to their patients in the way the noble Lord indicated. I can give the noble Lord that assurance without hesitation.

LORD LLEWELLIN

I am obliged to the noble and learned Lord, and in view of what he has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 41:

Supplementary ophthalmic services.

41.—(1) Without prejudice to the duty of the Minister under Part II of this Act to provide, as part of the hospital and specialist services, services in connexion with the diagnosis and treatment of disease or defect of the eyes and the supply of optical appliances, it shall be the duty of every executive council to make as respects their area, in accordance with regulations, arrangements with medical practitioners having the prescribed qualifications, ophthalmic opticians and dispensing opticians for securing, as from the appointed day, the testing of sight by such medical practitioners, and ophthalmic opticians and the supply by ophthalmic opticians and dispensing opticians of optical appliances, and the services provided in accordance with the arrangements are in this Act referred to as "supplementary ophthalmic services."

5.58 p.m.

VISCOUNT CECIL OF CHELWOOD moved in subsection (1), after "eyes", to insert "or ears". The noble Viscount said: My Lords, this is an Amendment to raise the same point that I raised during the Committee stage of this Bill. Those of your Lordships who were present on that occasion will recall that there was a very considerable amount of sympathy in your Lordships' House for the object, at any rate, that I had in view. There was a remarkable speech made by the noble Lord, Lord Horder, in which he emphasized very strongly the great evil which existed at present in the neglect of deafness, and in which he was good enough to say that he agreed with everything that I had said on that subject. After a little discussion, the Minister in charge—I think it was my noble friend the Earl of Listowel—was good enough to say that he entirely sympathized with the object I had in view. After a few further general observations he said he was of opinion that the point ought to be made at an earlier point in the Bill and that he would consider whether that could not be done. In view of that hope that was held out to me—I do not put it as high as an undertaking—I thought it right to withdraw the Amendment then.

I believe the noble and learned Lord on the Woolsack was good enough to write to me on the subject, and I very much regret that the letter never reached me owing to some circumstances of which I am not aware. However, I was fortunate enough to receive a copy of that letter and, although I have not had an opportunity of studying it very carefully, I think I understand generally what is contained in it. I hope your Lordships will forgive me if I state again very shortly the broad case for this Amendment. In Clause 3 of this Bill the Minister is directed to provide"…accommodation and services of the following description, that is to say"—and I leave out the words which are unnecessary for my purpose—"medical, nursing and other services required at or for the purposes of hospitals." That is the general provision, as I understand it, which is made for dealing with the ill health of the population. Then one comes to Clauses 40 and 41, which deal with a difficulty, and provide supplemental services. The difficulty is simply this. In certain cases (and what are dealt with there are dental cases and eye cases) there is not sufficient machinery in the hospitals to deal with them properly and therefore they are dealt with very largely outside the hospitals. It was thought, as I understand it, that it was necessary to have some supplemental provision to deal with those kinds of cases—that is, the teeth and eye cases—outside the hospitals and that the Government should take whatever steps were necessary to deal with the situation. I am putting it very popularly, but I understand that was the general idea.

Among other things, it is said with regard to the eye cases that there is to be provision made for sight testing (for the purposes of diagnosis no doubt) and for the supply of such optical appliances—that is so say, spectacles—as may be necessary for a person who has defective or subnormal sight. I venture to submit with great confidence that precisely the same considerations apply to ears as apply to eyes. There, too, the hospitals do not, so I am told, as a matter of ordinary practice deal with the ear cases, except for some very acute cases of illness, or make provision for the diagnosis or treatment of ordinary cases of deafness. Therefore there has grown up a certain amount of treatment outside, which is very inadequate and inefficient. I am not saying anything too strong, because that was exactly what the noble Lord, Lord Horder, said himself. What I am asking is that the ear should be put in precisely the same position as the eye, neither better nor worse, and that the same provisions should apply.

I do not say that you can hope to have a complete and efficient clinic for dealing with ears in every part of the land, because of course you cannot. The person who has a claim for something to be done to his ears will no doubt have to journey to some centre, but there ought to be centres which are fairly accessible to everybody. It is manifestly true that in the big towns it is urgently necessary to make provision for dealing with the immense number of cases of deafness there are in those towns. Because they cannot be dealt with by the ordinary machinery which at present exists for the treatment of diseases and detects of human beings, we must see that in this Bill sufficient provision is made immediately for dealing with those cases and ultimately for extending hospital treatment in some form or another. That seems to me, I must say, a very strong case for saying that ears shall be treated in exactly the same way as eyes in this matter.

I am not, as your Lordships know, an eloquent man, but on the Committee stage I tried to say as strongly as I could that I thought the case of the deaf required, and ought to receive, special consideration because, for one reason or another, deaf people do not excite the same sympathy as do blind people. That is the plain truth of the matter. When I refer to "deaf people," I do not mean, of course, only those who are stone deaf. They are indeed very difficult to deal with by means of hearing aids, although they, can be dealt with in other ways. I mean all people who have got defects of hearing. When my noble friend, if I may say so without being impertinent to him, said he thought there were only 400,000 deaf people who would be treated (and may I say that 400,00o is a considerable number in any case), I am quite sure he very much understated the number, because if you are going to deal with the partially deaf as well as with the stone deaf there must be a great many more than 400,000 people involved. If your Lordships survey your own House you will realize that there is a very considerable proportion of its members who do not hear as NMI as they would like to do.

May I add this? There is really a stronger case for the ears than there is for the eyes because it is part of the policy of the Government (and I am very grateful to them for having made it part of their policy) to provide free hearing aids for all those who require them and who are unable to pay for them. That they have promised to do. Indeed, I believe they have already begun to take the preliminary steps for doing it. They have taken the ordinary preliminary steps which every Government takes; they have appointed a committee, and that committee has investigated the matter and made recommendations. Curiously enough, they have actually produced, as a result, at any rate one instrument. There may be more than one, but I have not been able to see any. I was told by my noble friend Lord Listowel that there was one actually in existence and that the Government hope, by great exertions, to be able to make some sort of distribution of the instruments in two year's time. It is essential, therefore, that there should be adequate machinery ready to deal with the distribution of these instruments when they come into existence, and that there should be State machinery for examining those people who ought to have instruments and for providing them with them. That seems to me to be a very strong case indeed.

I would only add this, because I know your Lordships, quite rightly, do not want to be delayed at this stage. I think it is right to repeat the warning which has already been given in this House—namely, that there is a great deal which is objectionable in the methods by which the deaf are treated, and often gravely deceived, by those who have got what they are pleased to consider to be hearing aids for their assistance. I have come across many such cases. I have actually interviewed people who have tried to persuade me that something which was evidently a complete fraud and which had no kind of justification for being regarded as a hearing aid was worth ten shillings, I think they said, and that that was a very moderate price. This is a very serious matter indeed, and I do very earnestly ask the Government whether, if my words are improper, inadequate, or inconvenient, they cannot devise some method, even at this moment, which would make it clear that it is part of the duty of the medical profession to take care of these unhappy deaf people who are powerless to help themselves.

I do not want to indulge in appeals to emotion, but I ought to add that although I never get letters about anything I do, I have had several very touching and impressive letters pointing out the grave evils that people suffer, and their feeling of helplessness and hopelessness; because they cannot afford, or at any rate are not able to get, the right kind of instruments. They think that something ought to be done to help them. That is the case, and I venture to ask that if my words do not answer the purpose, the Government should suggest some words which will make it quite clear that the Minister shall have the power to make provision for deaf people where and when he thinks that that can be usefully done. That is not asking very much, but that is all I ask, and I hope, with those words, that I may leave the Amendment in your Lordships' hands.

Amendment moved— Page 37, line 10, after ("eyes") insert ("or ears").—(Viscount Cecil of Chelwood.)

VISCOUNT ADDISON

My Lords, as the noble Viscount is aware, I myself have spent a considerable time on this subject between the Committee stage and now, in an endeavour to discover what we could do in a practical form to meet the case put forward so eloquently and earnestly by the noble Viscount. I entirely agree with him that the deaf people, as a class, have been very insufficiently provided for—there is no doubt at all about that. At the same time, it is not correct to suggest that hospitals, or at any rate many of the bigger hospitals, have not aural surgeons on their staff. They have aural surgeons, and some very good ones, too. As a matter of fact, one of the difficulties is that there are far too few of such surgeons. It is the fewness of them which is one of the big difficulties. I agree with the noble Viscount, with all my heart, as to the misfortunes to which deaf people are often subjected by having money extracted from them for so-called aids which are quite unserviceable. At the same time, of course, it is no good pretending that the prescription of a particular remedy or apparatus, as the case may be, for a person who is hard of hearing is a matter which should lightly be undertaken. It must be the business of a skilled person, of course, and, speaking from my own experience, there are few departments of our anatomy which are more difficult to deal with than the internal apparatus of the ear.

I did my very best to explore the possibilities of seeing whether we could meet the noble Lord's case in Clause 41, and I am exceedingly sorry to say that I do not think it is a practicable proposition in this clause. The reason is that in the earlier part of the Bill, to which the noble Viscount referred, it is the duty of the Minister to make hospital provision, and so on. It will be the duty of the Minister to make hospital provision for treatment of deafness, ear diseases, and defects of the ear, just as much as it is his duty to make provision for the diseases of the stomach or any other part of the human body. That is a part of the general duty in the hospital. This particular section, standing by itself, relates to something quite different. It is called a supplementary ophthalmic service; that is to say, making use of people in the main who are recognized as having had enough training, to examine eyesight defects and to provide spectacles. As we all know, they are described in the Bill as ophthalmic opticians, and there are very large numbers of such people in existence. That being the case, this is a device for making use of their help outside, as supplementary to other services. If there were any such people in existence, available and sufficiently trained, to help with defects of hearing, then of course there would be an unanswerable case for making use of them. But there are no such people—

VISCOUNT CECIL OF CHELWOOD

Yes there are; I have often consulted them.

VISCOUNT ADDISON

But I can assure the noble Viscount that the number of people who are really competent outside the trained profession, for prescribing for defects of hearing, must be very small indeed, and for my part I should never dream of consulting them. But I admit that I am affected by professional prejudice. As a matter of fact, it is a risky business. The person to give advice on the subject of deafness and complaints of the ear should, at all events, be a properly qualified person. However, in this particular case there is in existence a considerable body of persons who have been practising and have the qualifications as here indicated for helping to prescribe apparatus for defects of vision, but there are no such people of a trustworthy and competent nature in sufficient numbers, for dealing with the ears, and therefore they are not put in the supplementary services. You do not put them there because they do not exist.

I am exceedingly sorry to have to make this reply, but it is quite impracticable to put them into the supplementary services because they do not exist. The right thing to do is to push forward with the provision for the treatment of deaf persons in our hospitals and clinics, including the provision of the apparatus. I share the noble Viscount's misgivings as to the time that has been taken for the manufacture of one apparatus, and I naturally ask myself: If one, why not more? However, I can assure him that we will put our utmostendeavour into this. So far as this particular clause is concerned, however, it really is quite impracticable to include this in it. The best I can do—and I will do this with complete good faith—is to make the best use I can of the last suggestion of the noble Viscount. I will take it upon myself to try and help the deaf people, to see whether some duty of this kind cannot be put somewhere earlier in the Bill, as a Third Reading provision, but I am quite sure it is impracticable to put it here, and I hope that the noble Viscount will not do so.

I give him my assurance that I will do my very best to try and find some place in the Bill to give effect to what he wants, but at the moment I can give no pledge because I do not see where it can come in. If it comes anywhere, it would come in the hospital's duties; it cannot come in the supplementary duties. I have, myself, had the advantage of seeing the letter, which I am sorry that the noble Viscount has not received. I can assure him that immense trouble has been taken over this—indeed it seemed an unconscionably long letter. But it does not of course make the position better or more satisfactory than I have now made it. I cannot, I am sorry to say, with the best will in the world advise the House to agree to this Amendment or anything like it in these supplementary provisions. But I give a complete assurance that I will do my very best to see whether, at a later stage, we can put in anything at an earlier place in the Bill which will give expression to the noble Viscount's desire in an appropriate way. These suggested Amendments would not be appropriate, I am sorry to say, in Clause 41.

LORD LLEWELLIN

My Lords, is the noble Viscount thinking of putting down an Amendment for the Third Reading?

VISCOUNT ADDISON

I am exploring that possibility, that is all. I am giving no promises.

VISCOUNT SAMUEL

My Lords, I think that something to the same effect was said on the Committee stage by the noble Earl, the Postmaster-General, but nothing has been done up to this, the Report stage, and I rise only in order to express the hope that on the last possible occasion some definite steps will in fact be taken. This is the third occasion, during discussions on this Bill, on which these matters have been brought before your Lordships.

Under the leadership of my noble friend the Duke of Montrose, supported by several noble Lords who are specially interested in this matter, this House has endeavoured to insist that the deaf shall receive consideration, in this country, more or less comparable to that given to those suffering from diseases of the eye and diseases of the teethe so that defects of the ears shall be made good equally as defects of the eyes and teeth. It would seem that there is in fact to be—using the expression somewhat differently from the way in which it is usually used—an eye for an eye and a tooth for a tooth, but not, apparently, as the Bill is now framed, an ear for an ear.

Noble Lords have insisted that these new appliances ought to be put on the same footing as those treatments and the provision of apparatus which are advised for people suffering from troubles relating to the eyes and the teeth. I would not go so far as the noble Viscount who said just now, that he thought eyes ought to be in the same position as ears. There is a flayour of Picasso in that which would not allow it literally to be applied. But I do strongly support the general position which he has taken up, and I trust that when we come to the Third Reading, we shall not be met with expressions of great regret that the Government have not been able to give any indication at all, in this Bill, that defects and infirmities of the ears should be given special and constant consideration.

VISCOUNT CECIL OF CHELWOOD

My Lords, I am afraid that my noble friend the Leader of the House will come here on the occasion of the Third Reading and say that he has very carefully examined every provision in the Bill but that he is afraid thee is nothing to be done in this connexion. He has almost told us that that is what he expects will happen.

VISCOUNT ADDISON

No I have not.

VISCOUNT CECIL OF CHELWOOD

I do not think that is very encouraging—to put it mildly. We ought to have something more than that. The noble Viscount now tells us quite definitely that the only difficulty in the way of putting something in this clause is this: that whereas there are considerable numbers of oculists and opticians, there are very few people who come within the category of (I had better use the description of which Lord Horder approved) aurists. Of course, there are lots of aurists and manufacturers of hearing aids. There are lots of them in London, in Manchester, and in all great towns, and I cannot conceive why this provision should not be made applicable to those great towns where these provisions actually exist—even if it is impossible to stretch it over the whole country. That is all I ask. I do not think that it would be any use applying it to the rural districts. Very likely it would not, because they are not yet sufficiently educated in the widest sense to see that something ought to be done to cure ear troubles.

I could make a great many other observations on this matter which perhaps would not be very germaine in the circumstances, but I will refrain from doing so. But may I make this last appeal to my noble friend? If he cannot alter this clause, why cannot there be inserted a little subsection in Clause 41 in very simple language—I can give him the language which I suggest. Why not have something of this kind: Similar provisions for dealing with diseases or defects of the ears may be prescribed. That is to say, the Minister shall have the right to say that the time has now arrived when we can stretch this provision as to eyes over to the ears. Surely that is a very reasonable provision. Nothing which my noble friend has said—not a word—in any way conflicts with such a proposal. May I venture respectfully to ask him whether he will not accept that? What possible objection can there be to going as far as that?

VISCOUNT ADDISON

I will only say that I will very gladly consider that and what I have suggested with regard to an earlier part of the Bill in entire good faith. I do not wish to commit myself any further than I have already done. I will do my very best to meet the noble Viscount's point, somewhere in the Bill, but I cannot undertake at this moment to put anything in under Clause 41.

VISCOUNT CECIL OF CHELWOOD

My Lords, I suppose then that I must attend upon the Third Reading to hear what has happened. I do earnestly ask my noble friends all over the House to consider this question very seriously. It is really a tragic position in which these unhappy people find themselves. Time after time we come here and we are always put off in some way or another. Why? We were told there was to be importation of goods from the United States—indeed there was importation; but that has been absolutely stopped. No kind of instrument for giving aid to hearing, or any part of it, can be imported into this country because it is thought that it would upset the balance between imports and exports. It could not possibly have any such effect, the amount of money involved is too small. But I fear that I have delayed your Lordships for too long and I tender my apologies. In the circumstances, there is no other course for me to take but to ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 42:

Disqualification of practitioners.

(7) Regulations shall make provision— (a) for prescribing the procedure for the holding of inquiries by the Tribunal and for the making and determining of appeals to the Minister under this section and, in particular, for securing that any person who is the subject of an inquiry by the Tribunal under this section shall have an opportunity of appearing before and being heard by the Tribunal and, in the case of an appeal, of appearing before and being heard by a person appointed by the Minister;

6.27 p.m.

LORD LLEWELLIN moved, in paragraph (a) of subsection (7), to leave out the words "of appearing before and being heard by the Tribunal and, in the case of an appeal, of appearing before and being heard by a person appointed by the Minister" and to insert:

1. "(i) of appearing, either in person or by counsel or solicitor or such other representative as may be prescribed, before the Tribunal and, in the case of an appeal, before a person appointed by the Minister; and
2. (ii) of being heard by the Tribunal or the person so appointed and of calling witnesses and producing other evidence on his behalf; and that the hearing, whether by the Tribunal or the person appointed as aforesaid, shall be in public if the person who is the subject of the inquiry so requests."

The noble Lord said: My Lords, on the Committee stage we had quite a considerable discussion as to whether an appeal under Clause 42 should be to the Minister or to the High Court, and in the course of that debate I suggested that a way out might be to make quite certain that when a man came before the Tribunal, or there was an appeal before the person appointed by the Minister (I am referring to the case of a doctor before he is struck off the list), he should be able to be represented by counsel or a solicitor or such other representative as may be prescribed. That, I presume, would include a representative perhaps of the British Medical Association, if they wanted to represent him. I suggested also that the man concerned should be able to call witnesses and produce other evidence on his own behalf. I made a further suggestion that if he wished it—of course, in a great number of cases, he would probably wish quite the reverse—the hearing should be in public. A public hearing seems to me to be a great safeguard. None of us would think of any of our Courts sitting in camera except in very exceptional cases, when perhaps the Official Secrets Acts were concerned.

Those points were to be considered by the Government, and I think that they form a happy compromise. They give security to the man before he is struck off the list. He may be ably represented, and he may call all the evidence that he wishes and, if he desires, he may have his case heard in public. I have a later Amendment to which I will refer in passing, which seeks to make the chairman of the Tribunal not just a practising barrister or solicitor but a practising barrister or solicitor of ten years' standing. If the Government can see their way to accept this Amendment, I believe that we shall have given a great deal of security, a sense of receiving greater fairness, to those doctors who come in to help operate this service. For these reasons, I very much hope that the Government will see their way to accept this Amendment.

Amendment moved— Page 39, leave out lines 40 to 43 and insert the said new words.—(Lord Llewellin.)

THE MARQUESS OF READING

My Lords, I had an Amendment down in Committee which took the matter a good deal further than the Amendment now standing on the Paper. I sought to provide that the ultimate, appeal should not be to the Minister, who would be "the person appointed by the Minister," but to the High Court. I wish that I could agree at this time in the general exchange of bouquets, but I do not regard the Amendment moved by the noble Lord, Lord Llewellin, as a happy compromise. I do not think that it goes anything like far enough. What particularly disturbs me is that the person who is to hear the appeal, and to weigh the evidence of the original Tribunal, and who has eminent counsel and so forth before him, may well be a person who has no legal experience of any kind. The unfortunate doctor who starts this investigation is perhaps arraigned before a Tribunal the majority of whose members are laymen—only one out of three is a lawyer, and the Minister can appoint anybody from his Department to weigh all the evidence of the original Tribunal, although that person may not previously have had any experience of that sort. Yet upon his decision depends the whole future of the man's professional life.

I cannot agree that that is a satisfactory position, and even on these well-trodden battle-fields I am going to make one more appeal to the noble and learned Lord on the Woolsack, that he should consider between now and the Third Reading of the Bill, not the provision of an appeal to the High Court (I realize that if I press that and ask for more, I shall get less) but the possibility of putting something into the Bill or the regulations to make it quite clear that the person appointed by the Minister to hear an appeal shall be a person, with legal qualifications, capable of taking a proper judicial view of the evidence.

THE LORD CHANCELLOR

My Lords, I confess that I was very anxious to meet this point, so far as I could, although I was quite unwilling to concede an appeal to the High Court, which I thought would be wrong. I desire to make the hearing before the Tribunal as satisfactory as it possibly can be, and so long as it concerns me, I shall make it my business to see that somebody of real standing is appointed. Therefore, I readily accept the Amendment to provide that ten years should be the minimum qualifying period for a solicitor.

LORD LLEWELLIN

Solicitor or barrister.

THE LORD CHANCELLOR

Solicitor or barrister. If you had proposed fifteen years as the period, I should be willing to accept. With these safeguards, I think that we have made this matter pretty water-tight. I am quite willing to accept the present Amendment. Although I am always persuaded—and I am afraid sometimes beguiled—by the noble Marquess into looking at anything, I think, in this case, that I have gone about as far as I ought to go. At any rate, I have done my best to meet the wishes expressed to me.

LORD LLEWELLIN

May I say how very much obliged I am to the noble and learned Lord the Lord Chancellor?

On Question, Amendment agreed to.

Clause 43:

Powers of Minister where services are inadequate.

43. If the Minister is satisfied, after such inquiry as he may think fit, as respects any area or part of an area of an executive council that the persons included in any list prepared under this Part of this Act— are not such as to secure the adequate provision of the services in question in that area or part, or that for any other reason any considerable number of persons in any such area or part are not receiving satisfactory services under the arrangements in force under this Part of this Act, he may authorize the executive council to make such other arrangements as he may approve, or may himself make other arrangements, and for the purpose of such other arrangements he may dispense with any of the requirements of regulations made under this Part of this Act.

6.35 p.m.

THE LORD CHANCELLOR moved to leave out "for the purpose of such other arrangements he". The noble and learned Lord said: My Lords, it was suggested to me that this clause was too widely drafted. It is the one which deals with the necessity for making arrangements in the event of some emergency. The words of the clause were so widely drafted that the Minister had a completely free run to do exactly what he liked. We do not want that, and therefore I have suggested (in this and the succeeding Amendment) words designed to show that the Minister may only have that latitude in departing from the strict rules of this Act in so far as it is really necessary for him to do so. I beg to move.

Amendment moved— Page 41, line 12, leave out ("for the purposes of such other arrangements he").—(The Lord Chancellor.)

LORD LLEWELLIN

My Lords, the noble and learned Viscount, Lord Simon, and myself had Amendments down to draw attention to this particular point. I think that as it was originally drawn the clause was far too wide. This is a case for an Amendment, and I am very much obliged to the noble and learned Lord, the Lord Chancellor, for listening to what we had to say—or rather, what I had to say, because my noble and learned friend was not here—and for putting down this Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment, as I have indicated, is consequential upon that which I have just moved.

Amendment moved— Page 41, line 14, at end add ("so far as appears to him to be necessary to meet exceptional circumstances and enable such arrangements to be made").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 48:

Provision of courses for practitioners.

48. For the purpose of affording opportunities for practitioners providing any services under this Part of this Act to keep themselves informed of the latest developments in professional knowledge, the Minister may enter into arrangements with universities, medical schools and dental schools, and any other persons for the provision of courses which such practitioners may attend, and may, with the approval of the Treasury, make payments towards the cost of the provision of such courses and the expenses of practitioners attending such courses.

THE LORD CHANCELLOR moved to substitute "persons" for "practitioners." The noble and learned Lord said: My Lords, we had some discussion about the use of the word "practitioners" and the noble Lord, Lord Horder, pointed out that sometimes we talk about medical practitioners, sometimes about dental practitioners, and sometimes just about practitioners. The noble Lord wanted to know what were practitioners. Not having a very clear idea in my mind, I thought that it would be as well to drop talking about practitioners; consequently, we propose to leave out "practitioners" and put in the simpler and shorter word "persons."

Amendment moved— Page 42, line 19, leave out ("practitioners") and insert ("persons").—(The Lord Chancellor.)

LORD LLEWELLIN

This, again, is a point raised from these Benches, and I am much obliged to the noble and learned Lord for meeting it.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

The next Amendment is consequential upon the last.

Amendment moved— Page 42, line 24, leave out ("such practitioners") and insert ("the persons providing such services as aforesaid").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

In the next Amendment, again, we propose to substitute "persons" for "practitioners."

Amendment moved— Page 42, line 27, leave out ("practitioners") and insert ("persons").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 60:

Power of trustees to make payments to Regional Hospital Boards and boards of governors.

60.—(1) Where property, other than property transferred to the Minister or to the board of governors of a teaching hospital under Section six or Section seven of this Act, is held on trust immediately before the appointed day, and the terms of the trust instrument authorize or require the trustees, whether immediately or in the future, to apply any part of the capital or income of the trust property for the purposes of any hospital to which Section six of this Act applies, the trust instrument shall be construed as authorizing or, as the case may be, requiring the trustees to apply the trust property, to the like extent and at the like times, for the purpose of making payments, whether of capital or income—

THE EARL OF MUNSTER moved, in subsection (1), after "hospital," where that word occurs for the first time, to insert "or to a hospital management committee." The noble Earl said: My Lords, this Amendment is precisely similar to one which I moved on the Committee stage, and which I need not explain again, beyond saying that it seeks to bring into Clause 60 the hospital management committees, which have like powers under Clause 59. After the appointed day, these committees would then be able to receive gifts.

Amendment moved— Page 51, line 34, after ("hospital") insert ("or to a hospital management committee").—(The Earl of Munster.)

THE LORD CHANCELLOR

My Lords, I am quite prepared to accept this Amendment and the succeeding two Amendments, which I think will put the thing right.

THE EARL OF MUNSTER

I am much obliged.

On Question, Amendment agreed to.

THE EARL OF MUNSTER

My Lords, I beg to move.

Amendments moved—

Page 52, line 5, at end, insert ("or to the hospital management committee for the hospital or for the group of hospitals in which it is comprised").

Page 52, Line 6, after ("board") insert ("or committee").—(The Earl of Munster.)

On Question, Amendments agreed to.

6.41 p.m.

THE LORD CHANCELLOR moved, after Clause 60, to insert the following new clause: . Where the character and associations of any voluntary hospital transferred to the Minister by virtue of this Act are such as to link it with a particular religious denomination, regard shall be had in the general administration of the hospital and in the making of appointments to the hospital management committee to the preservation of the character and associations of the hospital.

The noble and learned Lord said: My Lords, now we come to something of some little importance. The noble Earl, Lord Iddesleigh, had an Amendment down on the Committee stage which I promised to consider. I indicated to him that I was favourably disposed towards it, but that it would have to come in an appropriate place in the Bill. This Amendment is only carrying out an undertaking which the Minister gave. The noble Earl wanted to have the matter in the Bill—quite rightly. He wanted to see it in cold print, in order that it would be quite clear, and that any argument hereafter would be avoided. I have accordingly drafted this new clause, which I am putting in at this stage, and which I thought would go a very long way to satisfy him. Apparently it does not go all the way, because he wants to insert, as an Amendment to it, after "committee" the wards "and to the staff".

I am not prepared to accept that, and I will tell your Lordships why. It seems to me that there are different tests for staff. Suppose we have a denominational hospital. If it is a question of someone who is always there, such as the matron, I should think it absolutely essential that she should be a member of the particular denomination. The same might also apply to the resident physician, but if it is a question of a surgeon, one of these gentlemen you do not really see at all—in that case you are carried up to the theatre and he does whatever has to be done and then perhaps you see him once, perhaps five or six days later, when he takes out some stitches. So far as I am concerned, if I had to have some operation done on me I should not mind one bit whether he was a Roman Catholic, a Plymouth Brother, a Congregationalist or anything else. I should want, quite obviously, to get the best man, and I should not mind one little bit as to whether I thought he held sound doctrines on the question of justification by faith. That, obviously, is a point of view which we all have. He might be a member of the staff. Therefore, I hope that the noble Lord will see that what I have done is this. I have said that "regard shall be had in the general administration of the hospital, and in the making of appointments to the hospital management committee, to the preservation of the character and associations of the hospital."

With regard to the appointment of staff, as we now know, all the staff other than the very top people have to be appointed by the hospital management committee, and I am sure we may rely upon the hospital management committee, in a case of this sort, to use their good sense to see that in the appointments they make they do have regard to this consideration. With regard even to the very senior appointments which will be made by the Regional Hospital Board, there also the duty to have regard to these matters is a quite general one; it applies to them, too. So I would suggest to the noble Lord that it really is sufficient if he has got this broad, general statement of fact, that this is the guiding principle which is to guide everybody concerned—the Regional Hospital Board and the hospital management committee—in making appointments. I do not want for a moment to belittle the importance of this matter. Like the noble Lord, I can well believe that the peace and happiness of a patient—which must, I should imagine, play an immense part in the cure of the patient—would be very largely affected by the fact that he is in those religious and traditional surroundings to which he is accustomed and in which he is happy. I think it is an important matter, but I hope that the noble Lord will think I have gone as far as I can to meet him.

Amendment moved— Page 52, line 8, at end insert the said new clause.—(The Lord Chancellor.)

THE EARL OF IDDESLEIGH

had given Notice of an Amendment to the proposed new clause to insert after "committee" the words "and to the staff." The noble Earl said: My Lords, I should like to say I am very grateful to the noble and learned Lord on the Woolsack for the kind way which he has dealt with this matter. I am perfectly convinced that, on the basis of the information that has been put at his disposal, he has gone as far as he possibly can to meet the point which I raised at an earlier stage: I am going to put certain matters before your Lordships, which I hope may persuade the noble and learned Lord to give further thought to the matter and to consider whether he cannot after all—perhaps on Third Reading—accept the Amendment I have put down.

Let me say straight away it never has been, is not, and I trust never will be, the policy, of the Roman Catholic hospitals at any rate, to confine their medical or surgical appointments to members of their own faith. That is not our practice, and I am perfectly confident that in saying that I am speaking for every single one of the numerous Catholic hospitals. When we appoint a doctor or a surgeon we are concerned to appoint a man who will give the best possible service to our patients, and very often we do not know what his religious convictions may be. I can assure noble Lords that that is almost universally the case. But we are a bit anxious that in the matter of staffing our peculiar background and traditions should be considered. The noble and learned Lord suggested that when you are in the hands of a surgeon it does not matter what he believes about justification by faith. I hope I shall not arouse any prejudices when I say it might matter what he believes about euthanasia. There are a certain number of medical questions which have a moral bearing, and under some circumstances—I think very exceptional circumstances—it might be necessary to consider a doctor's or surgeon's opinions upon such matters when making appointments. That is why I personally would rather like this in.

I would point out one other matter. It is not a question of what is going to be done. It is a question of what is going to be done is that the Lord Privy Seal will observe the pledge which he gave in another place on behalf of the Minister of Health. It is not possible to doubt that that pledge is going to be observed. That pledge includes a reference to the staffing of the hospitals, and it is a specific and definite reference. I think I am entitled to ask your Lordships this question: if two-thirds of the pledge is to be inserted in the Bill, would it not be possible to insert the whole? I shall not move my Amendment at this stage. I very much hope that the noble and learned Lord will see whether he cannot meet me on this matter.

THE MARQUESS OF READING

My Lords, before we pass from this clause may I say that this is a matter which, of course, intimately and deeply concerns the Jewish community as well as others, and I should like, in the name of that community, to thank the noble and learned Lord on the Woolsack for the personal consideration which he has given to this problem, and for the very happy solution of it which has been produced.

On Question, Amendment agreed to.

Clause 65:

Qualifications, remuneration and conditions of service of officers

65. Regulations may make provision with respect to the qualifications, remuneration, and conditions of service of any officers employed by any body constituted under this Act or employed by a local health authority or by any such voluntary organization as is referred to in Section sixty-three of this Act, and no officer to whom the regulations apply shall be employed otherwise than in accordance with the regulations.

6.51 p.m.

LORD LLEWELLIN moved, after "authority," to insert "in their capacity as such authority." The noble Lord said: My Lords, I drew attention to the fact that under Clause 65 as drawn, officers employed by any body constituted under this Bill or employed by a local health authority could have all their conditions prescribed by regulation. I said that that power, in my view, was too wide, and that it would apply to all sorts of officers of the local authority who were not employed on health duties. I asked whether that could really be the intention of the Bill. I am now moving to insert after "authority", the words "in their capacity as such authority" That will make it clear that under the National Health Services Bill the only regulation prescribing conditions will refer to officers employed upon health matters. I need not detain the House any longer on the simple, short point of this very short Amendment. I beg to move.

Amendment moved— Page 53, line 10, after ("authority") insert ("in their capacity as such authority").—(Lord Llewellin.)

THE LORD CHANCELLOR

My Lords, we are quite ready to accept this Amendment.

On Question, Amendment agreed to.

Seventh Schedule: