HL Deb 03 March 1980 vol 406 cc27-33

3.40 p.m.

The LORD CHANCELLOR

My Lords, this might be a convenient moment for me to repeat, as the Chief Whip indicated, a further Statement now being made in another place by my right honourable friend the Secretary of State for Social Services about the future of the Lambeth, Southwark and Lewisham Area Health Authority (Teaching). The Statement is as follows:

"I reported to the House last Tuesday. On Wednesday I had a meeting with Mr. Stanley Hardy, the chairman of the AHA(T), who told me that the soundings he had taken among members of the authority led him to believe that the authority would in future accept its responsibility to comply with cash limits. On Thursday, I received a letter from the solicitor for the London Borough of Lewisham, writing on behalf of the three London boroughs who were the applicants in the case before the court informing me that his clients would not object to the commissioners remaining in a purely caretaking role until 31st March 1980. He envisaged that the authority, on resuming control from 1st April, would have freedom of action to review decisions taken by the commissioners, but accepted that the authority's expenditure should stay within cash limits. As the House knows, there is a clause in the Health Services Bill now in committee which, if approved by Parliament, will impose a statutory duty on all health authorities to comply with the Government's requirements on cash limits.

"The House will, I know, recognise the importance of these expressions of intent and the recognition they imply of the position which it was always my intention to sustain. In these circumstances, I thought it right to invite members of the AHA(T) to meet me last Friday to review the position, and I am grateful to the many members who at such short notice attended the meeting. The discussion took place in a helpful and constructive atmosphere. For their part, the members present, nearly two-thirds of the total membership, unanimously assured me that they will be prepared to accept an obligation to keep the authority's expenditure within cash limits. For my part, I assured them that on that basis they would be free to review any of the decisions taken by the commissioners, and moreover, that during, the short caretaker period up to the 31st March, the commissioners would not initiate any changes of major significance. I saw the commissioners' task as preparing for an orderly handover to the members of the authority, taking only such routine decisions which were essential to maintain services in the meantime.

"It seems to me that this would be a not unsatisfactory outcome and I have accordingly decided not to appeal against the judgment of Mr. Justice Wolff, but instead to arrange for the members of the authority to resume their functions from 1st April next.

"The solicitors for the three councils may seek a formal order from the court within the next day or so. Since the judgment effectively declares invalid the directions I gave last August, legislation will be necessary to regularise the position over the past seven months and to give immediate backing to the status of the commissioners up to the end of this month. The Government are therefore laying a Bill before the House to give legal effect to the decisions and actions taken under the directions from 1st August 1979 up to and including 31st March 1980. Copies of the draft Bill are available in the Vote Office.

"My right honourable friend the Leader of the House will make a statement about the arrangements for the Bill in due course following discussions through the usual channels. I offer my full and unqualified apology to the House in this matter and in particular for the trouble and inconvenience which the Bill will cause to honourable and right honourable Members."

My Lords, that concludes the Statement.

3.44 p.m.

Lord ELWYN-JONES

My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for repeating the Statement made in another place by the Secretary of State for Social Services. It arises from a serious situation where a Minister has purported to exercise powers he did not possess and to give instructions and directions which were illegal, without legal basis or authority. Whenever that situation arises in a democratic State like ours it is of course a grave matter, and it is gratifying that in this Statement the Secretary of State responsible has offered a full and unqualified apology to another place, and in particular for the trouble and inconvenience which the Bill will have caused to honourable and right honourable Members in another place. It is a rather more appropriate Statement, if I may say so, than was made on the previous occasion. But there it is— it is a full and unqualified apology. It calls now for retrospective legislation. I can only wonder what storms would have broken over the head of a Labour Minister in this situation. But I do not wish to be ungenerous on this occasion in the face of a full and unqualified apology.

However, a number of questions fall to be answered. It may well be that when the occasion of the examination of the indemnity Bill (if that is the right way of describing it) comes before the House we shall have a full opportunity to ask these questions. What is to be done with those who, during the seven months illegal exercise of powers by the commissioners, suffered loss or detriment as a result of the illegality? Did any of the patients who were removed from the hospitals that were closed suffer illness, death, as a result of these illegal acts? Are there payments due to those who may have been dismissed, sacked, as a result of the illegal acts? These are all matters of gravity which we shall expect to see explained and dealt with in due course. I do not expect the noble and learned Lord the Lord Chancellor to deal with them right now, but I tell him, and give due warning, that we shall await anxiously what the contents of the indemnity Bill will be.

Another thought that troubles me a little is this. The Statement that has been read to the House indicates that when discussions "took place in a helpful and constructive atmosphere ", a satisfactory conclusion was arrived at. Were such discussions attempted before the matters complained of arose, and before the Secretary of State arbitrarily, I think peremptorily and with excessive haste, sacked those concerned before being sure he had the legal authority to do so? It gives rise to anxious concern as to whether there was here a sort of instant Tory politics in operation: act first, think afterwards. I am reluctant to enter into the purely political scene, but the House may think that these are reasonable and fair questions put with my customary detached impartiality, and I hope that we shall get an answer.

It seems to suggest that a better approach, a better attitude of constructive discussion instead of confrontation is what we are faced with here. Again I am in danger of becoming party political, but is not this being reflected also in other scenes? But if I were to dwell on that the House would become a little impatient with me. Here there are serious questions that your Lordships may think it important to answer. These circumstances of indemnity legislation to correct illegality are rare in our democracy, but when they arise they are matters that this House above all takes with great gravity.

3.49 p.m.

Lord WIGODER

My Lords, it appears to us on these Benches that the reactions both of the Secretary of State and of the area health authority to the judgment of Mr. Justice Wolff have been highly commendable. This is clearly a situation which has arisen as a result of the Secretary of State acting in perfectly good faith— I do not think anybody has queried that— in order to deal with the problem posed by an area health authority that was unwilling to be constrained by cash limits, and indeed had indicated that to the predecessors of the present Government. It is, is it not, in a sense only an accident of politics that it is not the noble and learned Lord, Lord Elwyn-Jones, who has this afternoon been making this Statement?

Lord ELWYN-JONES

I cannot allow that to pass, my Lords, The noble Lord is now implying that my Government would equally have permitted this gross abuse of powers and illegality to take place.

Lord WIGODER

My Lords, I cast no aspersions on anyone. It is clear that what has happened in this case is that the Secretary of State acted on mistaken legal advice— and mistaken legal advice is equally available to both parties. In the circumstances, it appears to be sensible, first, that there should be legislation, a short Bill, to regularise the acts of the commissioners. As I understand that legislation, it will mean that there will then have been no illegal acts done by the commissioners, and I would be grateful if the noble and learned Lord the Lord Chancellor would help about that matter.

Secondly, it appears to be sensible that the Secretary of State and the area health authority have agreed that the authority shall have the right to review all the decisions taken by the commissioners during that period of time. Thirdly, it appears to be sensible that the area health authority should have indicated that it is prepared to be bound by cash limits in future. In those circumstances, it seems to us on these Benches that this is, on the whole, a not unsatisfactory solution to a very difficult problem.

The LORD CHANCELLOR

My Lords, I should thank the noble and learned Lord, Lord Elwyn-Jones, who managed to contain his schadenfreude within reasonable limits, though not absolutely as much as perhaps the noble Lord, Lord Wigoder; but I thank them both for the relatively genial way in which they received this Statement. I think the noble and learned Lord's memory is getting shorter with old age; he seems to have forgotten Thameside, Mr. Jenkins and the wireless licences, the Laker legislation, the Clay Cross legislation, the sewerage point and one or two other little episodes in the rather checkered career of the previous Government. So although he treated it as a grave matter on the whole he was wise not to pursue his schadenfreude beyond the point he did.

As regards the apology, I am glad he accepted it, but he did it in a rather niggardly way. When my right honourable friend made his Statement to the House the other day, he had not then received a transcript of the judgment, the meeting with the local area authority had not taken place and he had not decided whether or not to appeal. Obviously, the apology, which was unqualified, was made at the proper time, today, when the decisions had been arrived at— which I therefore should have thought was at the proper time.

I cannot quite give the information for which the noble and learned Lord asked, about the discussions in August, because I am not very fully briefed about them, but I would just tell him that my recollection of the matter is that the confrontation was the other way about— that the area health authority rather indicated that it was not their intention to abide by the law, by the direction— and the noble and learned Lord would do well to remember that the learned judge who tried the case and heard the evidence, which the noble and learned Lord did not, said that my right honourable friend had behaved not only in good faith, which one would take for granted, but also reasonably. So perhaps the limited extent to which he attempted to show schadenfreude was possibly misconceived.

Having said that, let me say that I am very grateful to both noble Lords for the genial, or relatively genial, way in which they have accepted this Statement. I took it upon myself to reply to it because as a Bill— not of indemnity: I think it is called of validation— is contemplated, it was right that the only available member of the Cabinet should make the Statement. It was in no way intended to reflect on my noble friend who ordinarily answers for my right honourable friend in this House, and I hope the House will think it was a proper decision to take. Again, I thank both noble Lords for the relatively genial way in which they have accepted this Statement, which was not an easy one to make.

Lord CAMPBELL of CROY

My Lords, is not this course the best and most satisfactory that could be adopted now in these circumstances and, speaking with the same political detachment as the noble and learned Lord, Lord Elwyn-Jones, may I ask my noble and learned friend the Lord Chancellor if he would agree that Ministers' powers can be in some doubt because of the legal advice available to them. which can be both vague and contradictory? May not this also have been the case when Mr. Mulley was having to deal as Secretary of State for Education with a similar kind of case and was found to have exceeded his powers? I speak with some feeling in this matter as a former Minister who had a similar situation but was fortunate myself in the courts to have been proved correct; but I could easily have been found the other way round on receiving legal advice of a different nature.

The LORD CHANCELLOR

My Lords, I am very grateful to my noble friend. I think that in the present state of delegated legislation and powers conferring it, Ministers of all parties are liable to run the risk of tripping up. Sometimes we even find that the courts differ as to the extent to which powers have been exceeded. None of us I think can claim to he entirely blameless in these matters and I think the less schadenfreude we show on these occasions the more honourable we appear to be.

Lord ELWYN-JONES

My Lords, I am not sure I find myself feeling that what I said was dishonourable, if that is what the noble and learned Lord has in mind. All I can say is that the reproaches which I have uttered today in this instance do not compare with the storm, the torrent and thunder of noises that came; and I wonder whether the exchanges that have taken place today with the noble and learned Lord on the Woolsack would have been as gentle as those which have befallen today? May I say this to the noble and learned Lord: they have been in office for only nine months. We were in office for years, which gave a little more time for error to be committed.

The LORDCHANCELLOR

My Lords, I hope I shall learn better from experience than the previous Government. I do not wish to be ungenerous to the noble and learned Lord, and I certainly did not intend to suggest any failing in the highest standards of courtesy and honour which he always observes, and he knows that I have the very highest opinion of him in every personal way. I thank him for his kindly approach to this matter and I do not know that we can carry it usefully very much further.