Select Committee on Health Minutes of Evidence


APPENDIX II

LEGAL DUTIES OF GOVERNMENT DEPARTMENTS AND AGENCIES

  403.  The actions of the Department of Health and the Medicines Control Agency must conform to the law. These notes outline some of the relevant legal principles that bear upon these agencies.

Administrative Law

  404.  Administrative law governs administrative decisions taken by public bodies. These should be reasonable, and the procedures which they follow in arriving at decisions should be fair. The Courts have developed the common law to devise checks upon what might otherwise have been the runaway power of public bodies. The Courts have insisted that administrative decisions are subject to principles of fairness. Administrative decisions should be lawful, rational and made in accordance with the correct procedures.

  405.  It is therefore possible that the failure to systematically and sufficiently-vigorously investigate the claims of parents may constitute irrational action, and be capable of future successful legal challenge.

Licensing Authorities such as the MCA

  406.  A licensing authority such as the MCA has a degree of freedom in deciding conditions, but it is not a complete unfettered freedom. Illegality takes place when either the decision contravenes or exceeds the terms of the power which authorises the making of the decision, or where the decision pursues an objective which is different from the purpose for which the power to make the decision was conferred.

  407.  An administrative decision may be within the strict legal scope of the powers, but it may nevertheless constitute an unreasonable exercise of power. Instances of this are those decisions based upon considerations which have been given too much or too little weight.

Irrationality

  408.  Legal irrationality is also established if a decision is made that is contrary to "substantive legitimate expectations". The citizen has the right to require the decision-maker to stick to a particular policy or guideline. The citizen also has the right to challenge a decision-maker who obstinately refuses to depart from a self-created rule or policy.

  409.  It is suggested that refusal to divulge relevant information on vaccines to the partners of children believed to have been damaged by them, on the grounds of "commercial confidentiality", could be argued to be in breach of this law. It is further suggested here that the implied expectation that parents should furnish comprehensive epidemiological evidence of how their child degenerated into autism following vaccination, in excess (in terms of robustness) of "evidence" that the DoH, the MCA and the CSM collect to the contrary, is unnecessarily onerous, and could therefore be unlawful.

Law of Procedural Fairness

  410.  The law of procedural fairness offers the right of the citizen to fair treatment when a public authority considers a matter which affects him/her and makes a decision, or fails to do so. Decisions must be reached in accordance with the rules of natural justice. The person making a decision must be unbiased, and the right of those affected by a decision to be given a proper opportunity to be heard on the matter is upheld by these laws.

  411.  The law of procedural fairness involves the right to be consulted, and also involves rules which require the decision-maker to always be prepared to listen to someone with something new to say. This is known as the rule not to fetter discretion. In this, the decision-maker must also be impartial. Again, it is suggested that the law may have been broken, by the Department not properly listening to parents' concerns.

  412.  A decision whether or not to properly investigate degeneration into autism after vaccination should be fair-minded. If a decision-maker (in this case the Department of Health) gives inadequate or excessive weight to factors when the decision is made, or is improperly motivated, or influenced by evidence which should have been excluded, the decision will be unreasonable. The law requires a proper connection between the evidence that influences the decision and the decision ultimately made. A decision that is made arbitrarily will be irrational.

  413.  It is suggested that the prevailing attitude at the Department of Health towards degeneration into autism could fall into the "arbitrary" category, by being dismissive of evidence, including systematic anecdotal evidence, submitted by parents.

Law of Unreasonable Exercise of Power

  414.  The law of unreasonable exercise of power also requires that like cases are treated alike. This is part of the ancient legal duties of equality of treatment. All persons in a similar position should be treated similarly.

  415.  This clearly has not been done when the cases of suspected degeneration into autism following MMR vaccination are compared with the cases of suspected Gulf War Syndrome. It is clear that the attitude towards children with autism has been wanting. In particular, there has been the failure to actively seek out such cases.

  416.  In administrative law, illegality takes place when a public body reaches a decision in pursuit of an objective which is different from the purposes for which the power to make the decision was conferred in the first place. Even discretionary powers are subject to important implied limitations set by the common law.

  417.  A public authority such as the Department of Health must pursue legitimate purposes and take into account relevant considerations. These could include the duty to eradicate measles, but would also include the duty to properly investigate reported adverse reactions to measles and MMR vaccines.

Commercial Confidentiality

  418.  Even contractual matters such as the contracts between the Department of Health and the manufacturers of vaccines, can be open to judicial review, for example in connection with the refusal by the Department to divulge the reasons for a vaccine being withdrawn on the basis of commercial confidentiality.

  419.  The principle that is upheld by the law is that public authorities have been established to be the servants of citizens, not their masters. Therefore, it is suggested that excessive regard for the Department's own interests, or for commercial interests, against the interests of children believed to have been damaged by vaccination, could be subject to future judicial review.

  Footnote: the above notes have been compiled from published sources. They were published in relation to other Government functions, but their underlying principles could apply equally to health.


 
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Prepared 27 July 1999