NATIONAL HEALTH SERVICE (INVALID DIRECTION) BILL (Hansard, 20 March 1980)

§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My 355 Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

§ The LORD CHANCELLOR
My Lords, I beg to move that the Bill do now pass.

§ Lord ELWYN-JONES
My Lords, when we discussed this Bill at Second Reading I raised a matter which the noble and learned Lord the Lord Chancellor said he would be good enough to consider. Your Lordships will know that this is a Bill to validate the invalid direction of the Secretary of State removing the functions of the Lambeth, Southwark and Lewisham Area Health Authority and appointing commissioners in its place whose actions were ultra vires. from August 1979 to March of this year. That is clear from the judgment of the learned judge who dealt with an application in this matter from the area health authority concerned.
During the course of the Second Reading debate I invited the Government to consider a proposal which I made, that the Bill should have a safeguarding proviso that a person who suffered injury, loss or damage by reason of any action taken by those concerned during the period of their actions which was ultra vires should not be deprived of any right of action he might have by reason of the provisions of this Bill. I also suggested that, in the alternative, someone who had so suffered should be granted compensation by means of an ex gratiapayment, or by some other means, in respect of the loss that was suffered. My proposal was prompted by a point which had been made in another place and which the Secretary of State frankly admitted caused 356 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. He said they were difficult decisions and disclosed that the chairman of the commissioners consulted Ministers before finally deciding that that is what he would ask the commissioners to recommend. They did so recommend.
My submission was that the action of slowing down the operations—an odd phrase on the part of the Secretary of State—which cardiac patients might have needed and been expecting. and similarly with regard to those with serious kidney trouble, might well have caused them to suffer injury or deterioration in their condition as a result of the slowing down of operative treatment, or easily to have suffered worse. it was in respect of that kind of situation that I asked whether some provision could be made to compensate them or give them some remedy in damages.
The noble and learned Lord kindly said that he would consider the point, but he indicated that he was impressed by what he described as the irresistible logic of a speech in another place by an honourable Member who is somewhat closely related to the noble and learned Lord the Lord Chancellor, the honourable Member for Grantham, who rejected the proposal for such a proviso. I regret that when we debated this matter the last time did not then know that another close relation of the noble and learned Lord the Lord Chancellor—that is to say, his father—when he was Attorney-General in 1923 thought it right to move a proviso to an indemnity Bill. I concede at once that it was somewhat different in character from the present circumstances.
In 1923, an indemnity Act was passed to indemnify the Home Secretary from personal liability for ordering the deportation to Ireland of rather more than 100 individuals. There was pressure on the Government that some compensation should be offered to them, although the effect of the indemnity Act itself was to remove any cause of action. The then Attorney-General moved a proviso that any person who. in pursuance of such an order. had been deported to Ireland since the given date and therein interned 357 should be entitled within three months after the passing of that Act to claim compensation for any loss or damage he might have sustained in consequence of such deportation and internment, and the amount of such compensation should be assessed by a tribunal, the composition of which he identified.
This is the kind of remedy that perhaps I should have emphasised more in my speech on this matter on an earlier occasion rather than seeking to rely upon a cause of action. Since that time, I have heard from the noble and learned Lord, and I am sure he will not object to my reading the communication that he has sent to me, which is as follows: As promised I have taken advice about the question you raised on Second Reading. As a result I am satisfied that the answer I then gave you is correct "— the answer being in the negative, broadly, on a previous occasion— the Bill wipes the slate clean so far as regards any cause of action arising solely from the invalidity of the appointment of the Commissioners. It does not exonerate the Commissioners from the legal consequences of any act or omission which would have given rise to a cause of action against them had they been validly appointed under Section 86. This is what was intended and it follows that no safeguarding proviso is required". I am naturally disappointed, but not entirely surprised by that answer. But I ask, even at this late hour, whether it would not be possible for the noble and learned Lord the Lord Chancellor to follow in the footsteps of his father and at least enable, in particular cases where real hardship or suffering may have been caused which would not technically make possible successful proceedings in the court, damages or compensation to be-recovered, and whether in the circumstances he might think it right to recommend to his colleagues in Government that something on similar lines should happen here. It may well be that patients have suffered by the slowing down of operations. The very phrase makes one tremble a little and makes one wonder what a pass we have reached where the slowing down of operations has now become part of the order of the day. We have read in the Press today of the way we have fallen behind most European countries in regard to the treatment of kidney conditions and kidney diseases. Cardiac troubles are very much a daily concern to everybody. There is room, should there 358 be a case that came before the authorities, for the exercise of that compassion which we know the noble and learned Lord the Lord Chancellor is capable of demonstrating.

§ The LORD CHANCELLOR
My Lords, the noble and learned Lord has of course got an excellent tease in having appealed from my son to my father. As a matter of fact, they were both right and therefore the appeal, as I hope to show your Lordships, does not lie. He referred of course to the O'Brien case, which was a very interesting case; it arose in my boyhood when my father was Attorney-General and therefore I am very well acquainted with it. The then Home Secretary on, I think, the advice of the then Attorney-General, deported a number of characters to Ireland, of whom the leading character was called O'Brien. That deportation was held to be illegal under the terms of the law as it then stood. It was at that time seriously suggested that both the Home Secretary and my father were guilty of the terrible offence of praemunire, which brought down one of my predecessors, Cardinal Wolseley. This was of course a matter of great concern to those involved, because in those days the Crown Proceedings Act had not been passed. The action could not he brought against the Crown so the Home Secretary-I think it was Mr. Bridges—and my father would have been personally liable. They had to pass an indemnity Bill.
The difference between that case and this was that what had been done was certainly a tort, if not a crime; it was trespass to the person applied to the person of Mr. O'Brien and his fellow Irishmen. Therefore, but for the indemnity Act, they would have been able to bring an action of trespass to the person, of false imprisonment and assault against the Home Secretary and perhaps the Attorney-General and the various officers of the Crown who carried out the deportation.
It was therefore necessary to pass an indemnity Act: hut, as the noble Lord, Lord Wigoder, explained on Second Reading and as I also tried to explain, this is not an indemnity Act. No action so far as I know has taken place which gives rise to a cause of action: indeed, 359 there is a decision in the first instance to show that in parallel circumstances no cause of action arises in respect of a delay in carrying out an operation, so that the cases are not at all on all fours.
No tort, so far as I know, has been committed. I pointed out on Second Reading, as did the noble Lord, Lord Wigoder, that if any tort had been committed this Act would not give any indemnity against it at all. Therefore, the cause of action against the tortfeasor, whoever he was, whether a commissioner or anybody else, still lies under the present Bill. The present Bill is a validation Bill, not an indemnity Bill, and all it says is that the actions of the commissioners are to be judged legal or illegal as if the original appointment purporting to be made under Section 86 of the consolidated legislation had been validly made, when, as Mr. Justice Woolf decided, it was not validly made. It was for that reason that I wrote to the noble and learned Lord and, after taking advice, which I have done—it is as good advice as it could be, although in the present context I say so in fear and trembling lest it should prove to be inaccurate—I conclude that, for the reasons I have given, no proviso of this kind is necessary.
The Bill sets out to retain any action of tort available against the commissioners which would have been available to them had they been validly appointed, but does not give any other new advantageous right of action. I therefore support both son and father and I will not say, Aetas parent um pejor avis tulit Nos nequiores, mox daturos Progeniem vitiosiorem"

§ Lord ELWYN-JONES
I can only say in response to that quotation"Diolch yn Fawr ", which means"Thank you very much ", but I doubt whether we can all follow it. However, the noble and learned Lord has not dealt with the compassion aspect which his father so singularly displayed on that occasion, or the possibility of administrative amends should there be a case when, during the period of the illegal performance of their duties by the commissioners and their delegates, damage may have been caused to the subjects which retrospective legislation is eliminating. Perhaps he will be 360 kind enough to apply his mind and enlighten us on that point in a language with which I at any rate am more familiar.

§ The LORD CHANCELLOR
My Lords, if I may, with the leave of the House, speak for a second time, I know that the noble and learned Lord is capable of speech in more languages than one. I was asked to talk about compassion, but what I was really asked by the noble and learned Lord was to insert a legal provision into the Bill, and it is therefore about the law that I am speaking. I was asked a legal question by the noble and learned Lord. If there be any case for compassion, obviously the compassion is not mine but that of my right honourable friend as a member of the Government, after consultation with the Treasury. But I know of no such case. Perhaps if it is put forward as a matter of compassion it would be considered.
However, on Second Reading I ventured to reiterate the point made by the noble Lord, Lord Wigoder, with which I happen to agree, that it really does not make sense when the inhabitants of Hounslow and Hammersmith, where there are very important hospital facilities of the same kind and where the authority obeyed the same constraints, do not have the adventitious right of compassion, that those who happen to live in Lewisham should. That would not be compassion, it would simply be unjust.