§ 3.37 p.m.
§ Lord CULLEN of ASHBOURNE
My Lords, with the leave of the House, it might be convenient if I were now to repeat a Statement made in another place by my right honourable friend the Secretary of State for Social Services on the Lambeth, Southwark and Lewisham Area Health Authority (Teaching). The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement on yesterday's judgment on the appointment of commissioners in Lambeth, Southwark and Lewisham.
"In August 1979 I gave directions under Section 86 of the National Health Service Act 1977, in effect appointing commissioners to manage the affairs of the Lambeth, Southwark and Lewisham Area Health Authority (Teaching). My action was intended to ensure that the AHA (T) should keep its spending for the year 1979–80 within the cash limits laid down by my predecessor.
"Although the court expressly held that I acted reasonably and in good faith in giving those directions, and moreover accepted that the situation which faced me did require immediate action, the learned judge found that in giving directions without specifying the duration I acted outside the power conferred by Section 86. He went on to suggest that there was an alternative course I might have taken. "I shall study the judgment in detail 1168 when I receive a copy and any question of an appeal must wait until then.
"However, my first thought is that proper respect for the courts and the rule of law meant that I must give urgent consideration to the early restoration to the members of the authority of their powers. I shall therefore this afternoon be considering with the chairman of the Regional Health Authority and the chairman of the commissioners the steps which might now be taken. All this must be done in a way that ensures that the progress made by the commissioners in establishing financial control will be maintained.
"The judge said that it is in the public interest that the commissioners should continue in the interim to act, and I know that the House will applaud what they have done to bring the financial affairs of the area under control."
My Lords, that concludes the Statement.
§ Lord WELLS-PESTELL
My Lords, I am sure the entire House is grateful to the noble Lord for repeating a Statement made in another place by his right honourable friend the Secretary of State for Health and Social Security. I think we on this side of the House are somewhat inhibited because the Secretary of State has not yet decided whether or not he is going to appeal against the decision of the learned judge, and while I recognise that one is perfectly free and entitled to make any comment one wishes to make, because there is no actual appeal pending, nevertheless one must have in the forefront of one's mind that this is a possibility. I should like at this stage to ask the noble Lord the Minister whether he knows now whether his right honourable friend is going to appeal—whether a decision has in fact been made?
Whatever the final outcome of this matter, it is rather a sorry story, because here we had a decision which was of supreme importance to the community being made on what would appear to be bad legal advice; that is, if the learned judge's view is to be accepted. My second question to the noble Lord the Minister is, by whom was his right honourable friend the Secretary of State advised? Was he advised by the Law Officers, and did he in fact consult them? We on this side are concerned because we feel that all this 1169 could have been avoided. It could have been avoided if the Secretary of State had taken notice of Section 17 of the National Health Service Act 1977, a point the learned judge made when he said that the making of emergency powers could have been avoided. It seems to us that this could be looked at as a kind of determination on the part of the Secretary of State to make an early impact, and to demonstrate the intention to start as he intends to go on, with what some of us feel were rather devastating results.
The Secretary of State was also wrongly advised that he could suspend the authority's powers indefinitely, and I think it has now been decided by the learned judge that he had no such power. This in itself makes the direction invalid, and as a result a very serious situation has come about. Two hospitals have been closed since the commissioners took office, and we on this side of the House find it extremely difficult to subscribe to the words in the penultimate line of the Statement, which says that the House will applaud what they have done. What they have done is to close two hospitals, at considerable risk to the communities in those areas. I ask the noble Lord the Minister: What is the Secretary of State going to do now? Will he reappoint the Health Authority, and can he give an undertaking that the two hospitals, St. Olave's and St. John's, which were closed by the commissioners, will now be reopened, or, if not both of them, one of them?
§ 3.44 p.m.
§ Lord BANKS
My Lords, I should like to join in thanking the noble Lord for repeating this Statement made in another place. There would appear to be two inter-related but separate issues here: first, the dispute between the Secretary of State and the Area Health Authority over the cuts in expenditure; and, secondly, the legality of the action taken by the Secretary of State when faced with this confrontation. Today, as I understand it, we are concerned with the second of those issues, and I should like to put these questions to the noble Lord.
Can he say, following yesterday's decision, what is the position with regard to the legality of the decisions taken by the 1170 commissioners during their period of office, including the closure of the two hospitals to which the noble Lord, Lord Wells-Pestell, has referred? Are the members of the authority to be free to reconsider all these actions; and must consideration of these matters wait until it is decided whether to appeal? The Statement said that all this, that is the early restoration to the members of the authority of their powers, must be done in a way that ensures that the progress made by the commissioners in establishing financial control will be maintained. Is the Statement suggesting there that the restoration of their powers to the members of the authority can be made conditional on ensuring that the progress made by the commissioners in establishing financial control be maintained? Must the restoration not be unconditional, and are there not other, though lengthier means, than those which the Secretary of State used which can be used by him in the future to achieve his aim with regard to financial control?
§ 3.46 p.m.
§ Lord CULLEN of ASHBOURNE
My Lords, I am grateful to both noble Lords for what they have said, though I realise that they regard this as being a serious situation, which it is. As the noble Lord, Lord Wells-Pestell, will well know, the previous Administration had considerable difficulty with this Area Health Authority, which at one point was something like £5.3 million in the red, and they did press the authority to economise, which they agreed to do. After the Budget in 1979 it was realised that not sufficient economies had been made to put the position right. So there has been quite an ongoing situation here for some time.
The noble Lord asked me whether my right honourable friend was going to appeal. I cannot answer that, because he has not yet seen the judgment and he will not decide until he has read the judgment. Unfortunately, I cannot say whose legal advice he took; I simply do not know the answer to that question. The noble Lord suggested that my right honourable friend was trying to make an early impact in the way that he wanted to go on in the future. I should like to say here that this is the first time these powers have ever been used. I think it was difficult to know whether the route 1171 Section 17 and Section 85 was right—that was giving a direction, and, if that direction was not followed, acting to replace the authority—or whether to regard it as being an emergency, which meant using Section 86. My right honourable friend took the view that as recommendations to economise had been rejected by the Area Health Authority it was unlikely that a direction would change their mind. He did regard it as an emergency situation, and it was for that reason that he took the Section 86 route.
As to the duration, that was an unfortunate matter. No doubt my right honourable friend could have put a duration, of either a short or long time, and that would, I think, have made the position all right. In fact he left it open, and I think he took the view that it would be some long time before he would know whether the situation was being cleared up or not. That was perhaps unfortunate.
So far as the two hospitals are concerned, I should like to point out to the noble Lord, Lord Wells-Pestell, that these are temporary closures, and anything in the nature of a permanent closure would, of course, entail the usual consultation. I find the questions asked by the noble Lord, Lord Banks, a little difficult to answer because I am not sufficiently knowledgeable on the subject. I am very sorry and I apologise to the House for being unable to answer these questions.
§ 3.50 p.m.
§ Lord HALE
My Lords, surely, in view of what the noble Lord has just said, it will be necessary for another early Statement to be made. I appreciate his difficulty, which is a perfectly fair one from his point of view. But surely we should know that this was an unconstitutional decision. It is a matter on which it was almost inevitable that the advice of the Law Officers should be taken. In the absence of information and from what the noble Lord has said, one almost assumes that the advice of the Law Officers was not taken. This is a very worrying situation. No doubt in the judge's decision the learned judge as far as possible wisely left the situation not immediately altered, because no one would know who was an authority, who 1172 was to give directions, who was responsible for any malfeasance that took place, by accident or design, in the meantime. He thought it right not to attempt to remove the officers appointed by the Minister.
§ Several noble Lords: Question!
§ Lord CULLEN of ASHBOURNE
My Lords, the noble Lord pays me a great compliment in thinking that I am so very well-advised on what is happening in my department. I am the spokesman here and this matter cropped up literally just now. Unfortunately, I cannot give the noble Lord an answer to the questions he has asked me. I am sorry.
§ Lord SHINWELL
My Lords, I should like to ask the Minister a question. I can understand that, having been asked questions, he naturally sought to make what he regarded as satisfactory answers. I want to ask him a simple question. Are we to have a legal wrangle over this matter? Are we to ignore the political implications? Is the noble Lord aware that, in spite of explanations, the Minister was responsible for a blunder of remarkable magnitude? We must consider the political implications because Members of your Lordships' House will recall that when this incident occurred sections of the Press were delighted and referred to the Clay Cross case, saying: "Now we shall deal with these people as they deserve", only to discover—never mind about who gave them advice—that the Minister made a mistake. I ask a simple question: What will happen to the Minister? If it had been a Labour Government and a 1173 Labour Minister, I can imagine the rows that would have ensued; there would have been cries of "Why don't you resign?"
I want to add one further comment, and no more. It is in the form of a question: Is the Minister aware that the last thing I would do—and I have been in the political business for a long time—is to take advantage of a mistake and call on the Minister to resign? However, the Prime Minister must accept responsibility. I want to know what the Prime Minister will do.
§ Lord CULLEN of ASHBOURNE
My Lords, I must say I am getting a great many compliments today. I am afraid I do not know what the Prime Minister will do. I think that the noble Lord is greatly exaggerating the enormity of the crime that he thinks my right honourable friend has perpetrated. In fact, the judge himself said that he acted in absolute bona fides. If the noble Lord would like to read the judgment, I think he will find that he has greatly exaggerated the picture.
§ Lord WELLS-PESTELL
My Lords, in view of the fact that this is of some great significance as far as the community and the public at large are concerned, will the Minister arrange for a Statement to be made in your Lordships' House as soon as possible, telling us who advised the Secretary of State? This is a serious matter. The House should know whether this decision was taken at departmental level or whether it was taken in consultation with the Law Officers of the Crown. I ask the Minister to take this back and see whether such a Statement can be made at an early opportunity. We, on this side, are not unmindful of the difficulties or of the fact that there may be an appeal. If there is, to some extent this will cause the matter to be shelved.
§ Lord CULLEN of ASHBOURNE
My Lords, I am sure that the House will not expect me to do more than take note of what the noble Lord has said, and to take the matter back and discuss it with my right honourable friend.