HL Deb 22 November 1976 vol 377 cc1698-705

27 Page 4, line 21, leave out "and"

28 Page 4, line 30, at end insert"; and (c) give its reasons;"

The Commons disagreed to these Amendments for the following Reason:

29 Because it is unnecessary to require the Board to give the reasons for its proposals, having regard to the principles and factors on which the Board is required to base its proposals.

1.10 p.m.

Lord WELLS-PESTELL

My Lords, with the leave of the House, I beg to move that this House doth not [...]sist on their Amendments Nos. 27 and 28 to which the Commons have disagreed for the Reason numbered 29. Your Lordships will notice that it is the view of the Commons that, it is unnecessary to require the Board to give the reasons for its proposals, having regard to the principles and factors on which the Board is required to base its proposals.

Moved, That this House doth not insist on the said Amendments, to which the Commons have disagreed for the Reason numbered 29.—(Lord Wells-Pestell.)

Lord SANDYS

My Lords, this is one of the Amendments which we felt extremely strongly about and I feel that I will not be taking up over much time of the House, and certainly I will not be taking it up for an unnecessary reason, if I speak to this matter at a little further length. First, the Government took issue with us on this matter. In the Reason given it is stated: "Because it is unnecessary to require the Board to give the reasons for its proposals, having regard to the principles and factors on which the Board is required to base its proposals." I should like to refer to the speech by the noble Lord, Lord Wells-Pestell, as reported at column 1342 of the Official Report of 17th November. The noble Lord said: In this case there is a set of principles, or four criteria. The Board has got to work to them; it cannot depart from them. When it reaches a decision, it is based on criteria which have been prearranged, to which it must keep. Because of that, we feel that there is no need for it to give its reasons. We want the Board to be completely independent. The noble Lord himself has pointed out that it must submit a report to the Secretary of State, who in turn is responsible to the House of Commons. I do not think one can have any greater safeguard than that. I should have thought that that is all one needs. The noble Lord went on to tell us about the report which is to be published, and he said (also as reported at column 1342): The Board is, in effect, answerable to Parliament by virtue of its annual report, which the Secretary of State must lay before Parliament. Here is an issue which we consider to be of the greatest public importance, when public boards are not answerable in any other shape and form than in an annual report. I would in no way impugn either the chairman or the members of the Board with the information which they are to supply in their first annual report, but from practical experience of reading the annual reports of other boards I can say that we are supplied in the reports with the following information. We are given the membership of the board, and then a very substantial exposition, couched in language which is not always easy to read for any length of time without a weariness overcoming the reader, about the practices which have been adopted by that public body. But nothing of any real importance is ever disclosed.

I believe that the Government, in ensuring that no Minister is going to be answerable in another place for this Board, are not making the Board in any way accountable in a public manner. We believe that this Amendment was vital so far as the public accountability factor is concerned. We felt that when the noble Lord, Lord Wells-Pestell, referred to four criteria his argument was not a very sound one. A little later in his speech, at column 1343, he said: The Board will not have to have a Minister answering for it, because in the long run the supremacy will rest with Parliament itself, and for that reason we do not see the necessity for these Amendments. The answer does indeed lie to some extent with Parliament, but unfortunately the Parliamentary procedures are somewhat slow, and the Board may take its decisions rather more rapidly than Parliamentary questioning or procedures can allow.

In the first of our group of Amendments which have been rejected by another place, we dealt with the situation relating to the membership of the Board, which we felt to be of great importance so far as the substantial management of the Board's affairs is concerned. One of our problems, which we aired copiously on both Committee and Report, related to the situation regarding deputies, and I acknowledge that the Government, in one of their Amendments, have made the position clearer. However, we believe on this Amendment that there is a point which the Government have manifestly overlooked, and that they have been totally unwilling to listen to reasonable arguments advanced both in another place on Standing Committee and in this House. I feel that this is a matter of very considerable regret.

Lord WELLS-PESTELL

My Lords, I want to remind the noble Lord—because I am sure he has read Hansard—that the matter was debated at considerable length and the Divisions in another place show very clearly that the Opposition's point of view was rejected by quite substantial majorities. I am not trying to make anything out of that; all I am saying is that the Opposition's proposals were rejected by quite substantial majorities because the matter had been ventilated. I want to add a word to what the noble Lord has said, although we have covered this matter very carefully. It is not necessary to require the Board to give its reasons, because under Part II of the Bill it is not acting in a quasi-judicial capacity, and it is not the normal practice to require reasons to be given for decisions which are administrative in character; and this is largely the function of the Board, certainly in respect of the matter that we are discussing. It is certainly unnecessary and undesirable to place an obligation to do so on the Board because under Part II of the Bill it is to prepare proposals for phasing out strictly and in every case having regard to the principles under the Bill which are clearly set out in Clause 4(7), as the noble Lord knows. The Board cannot depart from that. When it reaches the decision it is based on criteria which have been prearranged. That plainly distinguishes this Board, making proposals within a set of principles approved by this House, from many other bodies taking administrative decisions. The Board's reasons for making its proposals will always be that it is satisfied that it has met the requirements of the Act in respect of the function. The reasons to which I have referred, although I am sure unacceptable to the noble Lord, Lord Sandys, are we feel valid in our objection to the Board being asked to give its reasons.

Lord O'HAGAN

My Lords, I apologise to the noble Lord because I was not in my place when he began the discussion on this Amendment; I did not realise that we had gone ahead so fast. I think he will remember that during preceding stages I took part in the proceedings on this particular additional duty being imposed on the Board. The question I want to put to him is this: Can he imagine himself answering questions in this House on these matters? I ask this because under Clause 10 the Secretary of State has to publish and submit to Parliament, every set of proposals submitted to him under section 4 or 5 above", so presumably the Government are answerable to Parliament for those proposals. But these proposals are not the Government's proposals, as the noble Lord has told us: they are the proposals of the Board. The Board puts forward the proposals, which the Government cannot alter—that is part of the Goodman compromise; the Government have to accept them—but the Government do not know the reasons for the proposals, because those reasons are the business of the Board, and the Board is not obliged to give its reasons.

The answer of the noble Lord is that the reasons will be self-evident because the criteria under which the Board work are laid down in the Bill, and therefore it will be obvious what the Board's proposals are aimed at, because the Board can only be trying to carry out its duties under the Bill. If the noble Lord, Lord Wells-Pestell, can imagine himself in the position of having to come to this House to answer questions from, let us say, my noble friend Lady Ward of North Tyneside about what is happening under the Board's proposals for the revocation of authorisations in North Tyneside, he will have to say that he is not able to speak for the Board because he has not taken the decisions, the Board is not allowed to give its reasons for the decisions it has taken, and the Government do not want it to be allowed to do so. That answer will not satisfy my noble friend Lady Ward of North Tyneside; she will want to know the reasons.

My Lords, I am sure that there is good precedent for the Board not being allowed to explain what it is doing and why, and no doubt it may seem to those who prepared this Bill and to those who work in the Department that what the Board does will be self-evidently wonderful; but there may be others who do not agree. Are the Government not preparing difficulties for themselves when a Minister will be called to account for decisions when he does not know the details of them and when the Board which has taken the decisions is not under a duty to publish its reasons? I still have not resolved this dilemma in my mind. Will we not end up in the situation in which we end up so often in the case of the Post Office, when everybody in this House gets increasingly dissatisfied because no concrete answers can be given by the Minister? And, whereas the Post Office is quite capable of explaining what it is trying to do, and does so, as I understand it the Health Services Board will not be allowed to do so. Does the noble Lord not see some future difficulties here?

Lord WELLS-PESTELL

My Lords, this may well be so, but I think it is quite impossible, in any legislation at all, to guard against or provide for everything that is likely to happen. We know this. Every Bill produces difficulties and problems which sometimes have to go to the High Court for a decision. What we are saying here is that the Board's activities are clearly set out and defined in the Bill; and the Board is a competent body which, if I may say so, has a comparatively simple job to do in the sense that it has to work within guidelines which have been set down. It may well be that at some stage or other somebody is going to question its decisions—I do not know—but I recally cannot say at this stage how that can be dealt with. They have got to report to Parliament, and in the case of anything which is reported to Parliament it is within the competence of a Member of either House of Parliament to question it; but I cannot take it any further.

Baroness YOUNG

My Lords, it had not been my intention to intervene on this particular point, but as this is really not a Party political matter—it is not the centre of the Bill at all, but is really just a matter of judgment about these affairs—perhaps I may say this. I always find that if one can understand the reasons oneself one can attempt to explain them to someone else; and I still, I think, have not quite understood the Government's reasons for not accepting this Amendment. One completely accepts what has happened in another place, and that is fair enough; but let us take the two reasons which the noble Lord has given. They are, I understand, first of all, that guidelines for the way in which the Board shall reach its decisions are laid down in the Bill; and, secondly, that the decisions are themselves administrative in character. I would have thought that in both cases the question arises: What happens if the Board (in the opinion of at any rate some people) has not kept to the guidelines and has not in fact explained why it has not kept to the guidelines because it has not been asked to give its reasons?

Secondly, if it is simply an administrative matter, although, as my noble friend Lord O'Hagan has said, administrative matters are not matters that will be answerable for in Parliament in any event, they are matters which can be questioned by the parties involved. I do not myself expect to be in the position of having to question the Board's decisions, but there will be people who will, either people who are interested in phasing out the pay beds or those who are interested in providing private facilities, and I would have thought that under both those sets of circumstances there would be occasions on which it would be helpful for either party to know why the Board reached the decision that it did. It is because I cannot understand why the Government should object to asking for this that I would find it very difficult to explain to anybody why the Government have declined to bring forward an Amendment on this point.

Lord WELLS-PESTELL

My Lords, I do not think I can take it any further. I can see that where there are 4,444 pay beds involved it is going to take an enormous number of meetings and quite a substantial number of decisions, and if the Board is to be asked to give its reasons on every decision it makes then those decisions are obviously going to have to be considered by somebody, or a group of people, and there is going to be a tremendous amount of delay. Let us face the fact: there is going to be not only a tremendous amount of delay but a tremendous amount of work because, the Board having arrived at these decisions, the decisions have themselves got to be considered, and there is going to be a great deal of protraction. I think we are right in saying that we want to avoid this.

My Lords, it is a competent Board; people will not be appointed to it unless they are; and, as the noble Baroness has said, more often than not nothing will arise. Let us assume that something does arise. Let us assume that there are consultants who are dissatisfied. Let us assume that there are people on the other side—there may be a community health council, or all sorts of people—who are dissatisfied. I cannot for the life of me think that if there is very real dissatisfaction about a decision, whether it comes from the medical consultants or whether it comes from the lay side, then it will not find its way on to the table of the Secretary of State; because in the last analysis I suppose everybody, if they are very aggrieved about something that is happening in the National Health Service, has access to him—and when I say that I do not mean physical access. I would have thought that if there was something very serious you could not keep it within the knowledge of a few people. It would be bound, I think, to find its way to the Secretary of State, and my submission is that presumably, because he is Secretary of State, he would have to do something about it.