HL Deb 18 March 1980 vol 407 cc190-204

Second Reading debate resumed.

3.53 p.m.


My Lords, reverting to the business on the Order Paper I am sure your Lordships will be grateful to the noble and learned Lord the Lord Chancellor for his explanation of a Bill which, if I may say so, he has rightly described as having several technical aspects. It is a remarkable Bill in one respect, in its brevity, as the noble and learned Lord has indicated. In effect, it is a one sentence Bill and that is a pretty rare bird, even though the sentence runs to 15 lines. It is skillfully drafted but I do not think its brevity should be allowed to diminish its importance, for it is an important Bill for many reasons. First, it is a measure which seeks to limit the damage done by the ultra vires action of a Minister in the purported exercise of statutory powers. As the noble and learned Lord the Lord Chancellor has said, breaches of the law should not be treated lightly, and it is right that this should not be treated lightly in the consideration of this Bill today.

While it is true that the Minister concerned acted in good faith and on the strength of what the judge, at any rate, concluded was legal advice—and I am not going to venture to follow the path which the noble and learned Lord tempted me to follow by commenting on the quality of the judgment—I cannot recollect, when the Tameside and other decisions were made, that the noble and learned Lord and others were encouraging the possible view that the courts may have been wrong there. But there it is; I am content to rest upon the decision of the learned judge, as of course ultimately the noble and learned Lord himself has so rightly done.

I should also add that it is of course gratifying that the Minister made an early, unqualified apology, but nevertheless after all those circumstances of mitigation (if that is the right phrase) have been outlined, a serious Ministerial error was perpetrated in the direction given by the Secretary of State. By what was as a matter of law the illegal use of Ministerial executive power the Minister dismissed a properly constituted public body—a serious step indeed. I am bound to say that in those circumstances I think the draftsman of the Bill is to be congratulated on producing such an innocuous and disarming title as the National Health Service (Invalid Direction) Bill, confusing as. in the context of a National Health Service matter, the word"invalid"is. It led me at any rate to think that this was something to do with the improper transfer of an invalid patient from one place to another. We know the purpose of it, but the seriousness of the matter should not be overlooked on account of the charm and disarming quality of the title.

Another reason why the Bill is an important one is that it is retrospective in effect. The point was made in another place that it was also prospective in effect until 31st March but as the noble and learned Lord explained that was by agreement with all the parties concerned, and the House will have noted—and those on this side of the House will be grateful—that the noble and learned Lord the Lord Chancellor thought it right to pay tribute to the accommodating attitude of the area health authority in the light of what occurred.

As I have said, the Bill is retrospective and Parliament is always rightly critical of retrospective legislation. For the rest of my days I shall bear the scars that I suffered as the Attorney-General in the debates on the Burmah Oil Bill. But this Bill is not only retrospective, and our worry on this side of the House is whether or not the element of retrospection will result in depriving a subject, who has in fact been damaged or suffered loss by what was done by the authorities during the period of illegality, from a right of action in the courts, or possibly the opportunity for seeking administrative redress for his loss by means possibly of an ex gratia payment or by some other means.

Perhaps I may illustrate the anxiety which has been expressed to me, and which I feel, in this way: During the Committee stage of the Bill in another place on the 13th March the Secretary of State dealt with a point raised in the debate which, as he frankly admitted— caused us a good deal of anxiety ". It concerned— instructions given to kidney units and the cardiac unit at King's College hospital to slow down operations so that those units, too, should live within their budgets ". Quite what"slow down means I am not fully clear; it could not be on the operating table, I hope, but whatever the meaning is, that is what he said. He added: Those were difficult decisions, and it is not disclosing anything to say that the chairman of the commissioners consulted Ministers before finally deciding that that is what he would ask the commissioners to recommend ".—[Official Report, Commons, 13/3/80; col. 1612.] So that that action in slowing down the treatment of cardiac patients and those with serious kidney trouble needing treat- meat was the direct result of a decision of the Minister after he had been consulted.

The Minister then asked in the course of the debate: What happens if there are patients who feel that they were disadvantaged? "— and there certainly are, my Lords, Should the question of the illegality of the original appointment make any difference? The answer given by the Secretary of State was"No ". But I ask, does that really dispose of the matter? Supposing it was the case that as a result of the slowing down of a cardiac operation the patient's illness was aggravated and made more serious? If those were the facts, would the patient, in spite of the passing of this Bill, have a remedy, if it could be shown in the circumstances that the earlier health authority would not have issued the kind of orders that the commissioners and the Secretary of State issued. This was his answer in the discussion of the matter:"Well, the AHA might have clone the same thing."

Your Lordships will know, of course, that deferment of treatment of a cardiac condition could be a serious matter, could indeed he a deadly matter. Again, supposing that during the closure of a hospital, on the basis of the ultra vires order emanating from whoever was acting on the authority of the Minister or the commissioners, assuming it could be shown that it was not an order which the removed health authority would itself have made, without negligence on the part of anybody —if there is negligence provable of course a cause of action would arise in respect of such negligence in spite of the Bill; the noble and learned Lord made that clear—and a patient did suffer an aggravated condition, an aggravated ailment possibly injury, or worsening of his condition, by being moved in perhaps a cold, bumpy, unsuitable ambulance, or whatever the reason might be, would that patient in those circumstances be able to recover damages or some sort of compensation, the aggravation of his condition having been occasioned by his illegal removal, as it was in the circumstances at the time, from one hospital to another, or by the refusal, the slowing down, of cardiac treatment for him?

My Lords, the Secretary of State dismissed, I think summarily, the suggestion that provision might he made for hint to have discretion to make perhaps an ex gratia payment in those circumstances. The question which I would respectfully invite the noble and learned Lord and the Government to consider is this. flow clean does the Bill wipe the slate of responsibility on the part of the authorities during the period from August of last year to March of this year? I would invite the noble and learned Lord to consider whether it would be appropriate to include a safeguarding proviso. I am not seeking to draft what it might be, but on the lines that if anyone has suffered injury, loss or damage as a result of any action of the commissioners, their servants or agents, he shall not be deprived of any right of action or recovery he may have by reason of the provisions of this Act.

I am not seeking an answer to these questions now, unless the noble and learned Lord feels confident and absolutely certain that he has a quick and ready answer; then I would be willing to listen with my accustomed admiration of his skill in these matters. But if he would consider the matter between now and the next stage I would be grateful. What we need to do in this Bill is to strike a balance between the undoubted necessity of some form of validation—which is why we shall not oppose the Second Reading of the Bill—and ensuring nevertheless that the exercise of retrospective powers will not prejudice, so far as that can be avoided, anyone who may have suffered injury, loss or damage by reason of what occurred during the period of unlawful exercise of authority by the powers concerned.

4.5 p.m.


My Lords, if your Lordships' House was discussing this afternoon solely the question as to whether this Bill should be given a Second Reading this would be an even shorter discussion than it is going to be. I say that because, on the principle of this Bill, the Opposition in the other place did not seek to divide at any stage, except on amendments in Committee stage, and indeed the Attorney-General in the former Labour Government, Mr. Silkin, indicated that he supported the Bill. We are, however, discussing something perhaps a little wider than the question whether the Bill should be given a Second Reading. It is neces- sary in a sentence or two to refer to the history of this matter as it seems to me on the undoubted facts.

It is perfectly clear that the Lambeth, Southwark and Lewisham Area Health Authority had over a period of several years found it impossible to live within its budget. I say that not in any critical way. It has particular problems being an inner urban authority; it has a particular problem because it has no less than three teaching hospitals in its area. But the fact is that it was unable to live within its budget and was persistently over-spending by substantial amounts running into many millions of pounds. It was of course doing that to the detriment of other area health authorities, because the amount that could be spent by the department was limited, and if one area health authority overspent it followed that the money would have to be made up at the expense of other area health authorities.

That was a situation which it seems to me no responsible Secretary of State in any responsible Government, whatever its political complexion, could allow to rest there. Indeed, Mr. David Ennals, the Secretary of State in the previous Government, took certain steps to deal with that overspending and those steps were to some extent successful. But when the Secretary of State in the present Government took office it was clear that nevertheless the overspending was continuing, and the Secretary of State in the present Government in those circumstances decided to take further steps.

I do not see how he could have done other than come to that decision. The decision in itself was a perfectly proper one, from whatever political point of view it is looked at. What he obviously then did was to take legal advice as to how to proceed, and it is now common knowledge that the legal advice was wrong. There is nothing very remarkable in that. If legal advice was always right there would be far fewer contested cases than there are. Indeed, I have heard it whispered that there are occasions on which distinguished judges do err in matters of law and are overruled in higher courts.

As we have heard from the noble and learned Lord on the Woolsack, Mr. Justice Woolf in due course found in favour of the area health authority, on what I think can fairly be called two narrow points. Indeed the particular point and the decisive point, as to whether there should have been a time limit expressed when the direction under Section 86 was made, was so narrow that it had been specifically abandoned by counsel acting for the area health authority in the course of the argument before the learned trial judge.

My Lords, in that situation perhaps the only comment I would venture to make is this: that it does seem a little strange that the department did not seek the advice of the Law Officers. I say"did not seek the advice of the Law Officers ", because it does not appear from the debate in the other place that it was agreed that such advice had not been obtained. With the advantage of hindsight, which is always a considerable advantage, it may be that, when a Secretary of State is about to invoke powers for the first time which involve dismissing or suspending a responsible authority and replacing it with directly appointed commissioners in an area as controversial as this was bound to be, it might have been better to have obtained the advice of the Law Officers. I do not mean to suggest by that comment that the advice would necessarily have been different. Law Officers, too, are not infallible, but perhaps one of their functions is that in matters of this sort an opinion should be obtained from them, rather than left with the department's own legal advisers.

In this unhappy situation the result is that a series of actions has taken place, carried out by the commissioners over a period of months. The question is: what is to be done about it? The answer is perfectly clearly expressed in this short Bill which validates those actions. In so far as those actions were themselves wrongful—for example, wrongful dismissals or anything of that nature—of course, it does not legitimise those actions. But it means that their actions as a whole are to be regarded as lawful in the sense that they are not rendered illegal by the fact that they were improperly appointed in the first place. It seems to me to be the only way to deal with the situation.

I do not see how the Bill can be improved by the addition of the amendments —which I must say I thought were somewhat misconceived—that were introduced in the other place at the Committee stage. It may be that some of your Lordships will have read the observations about those amendments by one of the Members of the other place, not entirely unrelated to the noble and learned Lord on the Woolsack. They seemed to me, if I may say so, to be of some effect.

Your Lordships will have listened with very considerable care to the noble and learned Lord, Lord Elwyn-Jones, who raised the question of people who suffered disadvantage during the period that the commissioners were in office. I cannot help reflecting, unfortunate though it may be, that they would have suffered precisely the same disadvantage had a time limit been put into the Section 86 direction and the activities of the commissioners been lawful ab initio. It seems to me that they would have suffered precisely the same disadvantage if commissioners had never been appointed in the first place, but the area health authority had proceeded to comply with the cash limits.


My Lords, if the facts were that the area health authority would not, for instance, have closed a hospital—and we have heard of the case of the cardiac patient to whom I referred and who, because of that change of decision and circumstances, suffered aggravation of his heart condition—would that not be a fresh matter for which some sort of provision (I do not say for one moment that it is an easy problem) ought to be made in retrospective legislation?


My Lords, if there is pressure upon any authority one way or another to limit their expenditure—and that pressure can perfectly properly be brought by this Government, as it was by the previous Government—it is inevitable that some people are placed at a disadvantage. I doubt, if I may say so most respectfully to the noble and learned Lord, whether it really helps to talk in terms of the slightly emotive context of the cardiac patient. Some people are bound to be disadvantaged—of course they are—if there is less expenditure on resources at any one time than there was at a previous time. But I cannot see how the mere fact that that happens gives a right of action, or should give a right of action as a matter of law, to those people who find themselves placed in that unfortunate position. If that is right, then it seems to me that that would be the situation, or ought to be the situation, where the commissioners were appointed as a result of an invalid direction, just as if they had been appointed as a result of a valid direction.

This is a matter of gravity—of course it is. I entirely agree with the noble and learned Lord, Lord Elwyn-Jones, that any instance of a Government department having been shown to have acted illegally over a period of months, is of course a matter of gravity which deserves the most careful consideration. It is a matter of gravity too, that we are discussing a Bill today that has a retrospective effect. It is bound, in the very nature of the whole incident, to have a retrospective effect. But again it seems to me to be right that we should consider the Bill with the greatest possible care from that point of view.

Having considered the whole history of this extremely unfortunate matter, it seems to me that your Lordships' House really has no alternative, in common sense but to give the Bill a Second Reading and, in due course, and as quickly as possible, to let it go on the statute book.

4.16 p.m.


My Lords, it was not my intention to invervene in this Second Reading debate this afternoon, because before your Lordships considered the Bill my noble and learned friend Lord Elwyn-Jones and myself found ourselves in complete agreement with the noble and learned Lord on the Woolsack who said that this House was different in a number of ways from another place and that we would not want to follow the other place in having a detailed discussion of a large number of matters which to some of us perhaps did not come within the terms of this Bill. However, I must confess that the way in which the noble Lord, Lord Wigoder, introduced what he wished to say, tempted me almost —by his reference to the situation of the last Government—to say something about the events leading up to this situation. However, I shall resist that temptation because I do not think it would serve any useful purpose at all.

I am on my feet for one purpose and one purpose only; namely, when this matter first came before your Lordships' House on 26th February, when the noble Lord, Lord Cullen of Ashbourne, repeated a Statement made by his right honourable friend in another place, I asked the noble Lord whether he would inform the House as to who was responsible for giving legal advice to his right honourable friend the Secretary of State. That information was not forthcoming and I said that, if there were a subsequent Statement, I hoped that it would be given then. On 3rd March, when the noble and learned Lord on the Woolsack made a Statement, the matter was not dealt with. I wanted to say that, as I pressed the matter, having read the debate in the other place, it seemed to me to be perfectly proper that that information should not be given. Perhaps I can say it is almost a matter of congratulations to the Secretary of State that he did not give it, because he has honoured the convention, which sometimes seems not to have been honoured, in accepting full responsibility himself and not putting it on somebody else.

4.19 p.m.


My Lords, I would not have intervened but for the observations that came from the noble Lord, Lord Wigoder, a few moments ago. Although I always have the greatest respect for his comments, I am afraid that he is at least responsible for my wearying your Lordships for a couple of minutes. It is absolutely right that one should praise, as the noble and learned Lord who sits on the Woolsack did, the learned judge who delivered the very lucid judgment in this case, Mr. Justice Woolf. It is quite right that one should praise the Secretary of State for the dignity and gentility of his apology to the nation at large. It is right that one should praise the local authorities for being generous in their hour of triumph, for being conciliatory and for being sensible in the circumstances. It is equally right that in circumstances such as these—and I do not level any blame, but merely express sorrow that such things should occur—there should be a Bill of this kind before your Lordships' House.

However, in the very language that the noble and learned Lord the Lord Chancellor used, when one breaches the law of this country, however much one may sympathise with those who do it, it is a"breach which cannot be treated lightly because it is a breach of the law ", and ignorance of the law is no excuse. Very simply that means one thing, that we cannot use excuses and say,"But if only a date had been put in the document; if only the Secretary of State or his advisers had looked through certain other sections, they might well have acted under sections which were open to them." The fact is that the law was breached, and anyone who happens to suffer, and who can prove that he suffered, as a result of the fact that someone was acting in purported authority under law but had not right to do so, in my submission to your Lordships, must have a right of redress, whether by law, by administrative acts or by the generosity of a Government.

That was the point which my noble and learned friend Lord Elwyn-Jones was putting to the House. He put to the House an example of what might have occurred to a cardiac patient. The noble Lord, Lord Wigoder, dismissed that matter not because he lacked sympathy, but because he said that that might have happened in any event if only a date had been put in or, indeed, if another administrative authority—the legal one—had been in charge. In my view, the example given by my noble and learned friend was a very valid one. However, perhaps I could give another example to the House which might, if I may respectfully say so, make the noble Lord, Lord Wigoder, think again.

What of the position of an old employee of a hospital, someone who has been at that hospital for many years; someone, to give a hypothetical case, whose age is 58 and who will retire when he attains his 60th birthday? Let us suppose that one manages to prove that the area authority would never have closed the hospital, would never have announced the closure and, if you like, would have thought of other economies. Let us suppose that this employee is told by this authority—the commissioners, who are not legally acting in the matter, or by their agents—that the hospital will be closed. He might obtain alternative employment elsewhere for the odd two years of his service, but it could be a long way away. Of course, it could be that he would not want to go elsewhere but simply wants to stay in the hospital, if only he can, that he has served so loyally and for so long. Let us suppose that he decides to elect for an early retirement which now means a loss—a diminution—in his pension rights. I merely give that as an example of a situation which your Lordships may well think ought at least to be looked at and covered.

If there are no such cases, and nobody manages to prove, first, that the area health authority would not have done the same thing and, secondly, that he suffered no loss, quite obviously the point falls—it is a good academic point, but it has no practical application. With respect to my noble and learned friend, I believe I am right in saying that this was the principle of the point that he was putting so clearly to the House, and it is also the principle of the point that I wish to put to the House.

I hope that the noble and learned Lord the Lord Chancellor will be able to say that if' there are any such cases they will he looked at sympathetically and dealt with sympathetically. I also hope that the noble and learned Lord may think it proper to answer at some stage—as my noble and learned friend so patiently and courteously said— whether one ought not to consider a proviso to this Bill to cover cases of this kind as a matter of law; if one ought to do it by way of law and not by way of generosity and kindness.

4.26 p.m.


My Lords, I am grateful to the noble Lords who have taken part in this debate and for the tone of the debate generally. If I may say so to the noble and learned Lord, Lord Elwyn-Jones, at the moment I do not believe that the safeguarding provision, which he mentioned at the end of his speech, is a necessity or, if not necessary, is desirable, because I do not think that one should burden Bills of this kind with that sort of thing if they are not necessary. But I shall take advice about it, because—as he has divined—although I have the capacity for a confident and early answer, I am also aware that confident and early answers are not always right. Therefore, I shall take advice about it. However, I should expect the advice to coincide with what I have just said rather than it being the opposite. Certainly that will be considered.

My task has, I think, been almost completely covered by the speech of the noble Lord, Lord Wigoder, with which, broadly speaking, I agree, both in his reasoning and in his conclusion. I read with care the debate on the Committee stage in another place which resulted in two Divisions. Both were concerned with the principle of compensation, and I read all the arguments for and against. However, I came to the same conclusion as the noble Lord, Lord Wigoder, that what the proponents of the two amendments which failed sought to do was not to get compensation for a wrong resulting from what was basically an error of form in my right honourable friend's direction, but, in effect, to get an adventitious advantage which would not have been shared had they lived, say, in the Boroughs of Hammersmith or Hounslow, where exactly the same conditions occurred but where, in fact, the area health authority took upon itself to obey its constitutional duties instead of defying them.

I cannot for the life of me see that an adventitious advantage ought to be given to those who happen to live in Lambeth because the local authority failed to do what it now recognises to be its duty, and because my right honourable friend failed to observe the proper form in giving the direction which superseded it in its authority. Like the noble Lord, Lord Wigoder, I was particularly impressed by the lucid and, to my mind, irresistible logic of the speech which was made in another place by the honourable Member for the holy city of Grantham. I found it completely convincing.

I was very grateful to the noble Lord, Lord Wells-Pestell, for what he rose to say, because, of course, it is a convention which Governments observe that Ministers take responsibility for errors of law and they do not disclose the sources from which they derive their errors. But I would say, speaking in general as one who has held executive offices other than that which I at present hold, that I do not think one should go running to the law officers on every possible occasion. On the contrary, the law officers would not improve the quality of their advice if they were given a great deal more to do. Indeed, there are other alternatives, and one must exercise one's wisdom about them if one is a Minister.

One can, of course, rely on the very capable qualified staff in one's own department. When I was Minister for Education and then Secretary of State for Education and Science, we had a very competent legal staff, and I am bound to say that on matters which were directly within the field of education I should probably have preferred their advice to that of any other available lawyers outside the field of one's own department. It depends very much on the kind of question which one is asked. One goes to the Treasury Solicitor and he advises one whom to get advice from. It might be a question of criminal law, when one would go to one of the Treasury counsel who practise in the Central Criminal Court. It might be a question of patent law, in which case one would probably inquire of a patent lawyer with a very wide legal experience.

Although it is not proper for the Government to disclose in particular cases the sources that they consult, I do not think it is necessary, as a general rule, to say that they ought to have gone running to the law officers in each case. Whether they did in this case must be a matter which is wholly unknown to anybody outside Government circles, although I have noticed there is a certain amount of speculation in various organs of the Press.

I think that is really all I particularly wanted to say. I shall, of course, bear in mind the general observations made about retrospection, with which I agree. I thought I remembered the Burmah Oil debate in another place, in which the noble and learned Lord played a prominent part. I played a less prominent part, but he may not know the inner history of how I helped the Conservative Opposition to get him off the hook. One day I will tell him.


My Lords, I must say it is a revelation to me that I was ever allowed to get off the hook.


My Lords, of course, one cannot, when one is in Opposition, go through the motions of removing the barb from the Attorney-General of the day, but one can make things easier or more difficult for him, and we were faced with a very difficult parliamentary situation. I think we, with our customary sense of responsibility in Opposition, got out of a very difficult situation very nicely, although we incurred a good deal of hostility from members of our own side. However, I must not digress into history.

I am very grateful to the House for giving this Bill a fairly friendly welcome. I do not think anyone could indulge in enthusiastic condemnation of Ministers who sometimes take wrong courses in law. When I repeated the Statement on 3rd March, I enumerated quite a number of previous occasions when Ministers had gone wrong in law. I did not mention the Burmah Oil case. Nor did I mention the rather curious case which involved the noble Lord, Lord Gordon-Walker, when he was Minister of Education. We can all make mistakes of this kind. Ministers must always come to Parliament wearing sack-cloth on their shoulders and pouring ashes on their heads when they do it, but, just as one must not make light of such breaches or failures on the part of Government, one must equally not exaggerate, because they can be overstated and often arc in the heat of debate and party politics.

There is one philosophical point which I should like to add at the conclusion of my remarks and which will bring me to a close. It is this: when we talk, as we did earlier in the session about the European Convention on Human Rights, there are noble Lords—I think mainly on the Labour side, but also among the Law Lords on the Cross Benches—who talk of the horrors of judges becoming involved in decisions with sensitive political consequences. I did venture to say then, and I repeat it, that they cannot avoid it. Litigation is demand-led and from time to time judges will have to condemn Ministers. It is a very good thing that we have an independent judiciary and an independent system of courts in which judges are not afraid of the consequences to themselves of doing so. The unfortunate Chief Justice of Uganda was rather less fortunate when he decided against the Government under the regime of the detestable Amin. My Lords, I thank you for your kindness and indulgence.

On Question, Bill read 2a, and committed to a Committee of the Whole House.