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Earl Russell: I accept the Minister has a good intention--he has a real problem--but he knows what happens to good intentions. I do not think his speech has done his case much good. The Minister has said that without this form of words in the Bill the Secretary of State will be unable to recover sums of benefit which court judgments prevent him from recovering. That comes close--I say no more than that--to authorising the Secretary of State to break the law. That is not something that this House can or should view with equanimity. If the Minister has--as I think he has--a perfectly laudable and proper objective, I must ask him to consult the parliamentary draftsman and find a way of achieving that objective which is not quite so directly contemptuous of the authority of the courts. It is a kind of challenge which I cannot imagine any authority with
any self-respect failing to rise to. The Minister should not go round waving red rags at the courts. I hope that he will think again.
Baroness Hollis of Heigham: I, too, was disappointed by the Minister's comments. Normally the Minister gives a good imitation of being persuaded by his own case. However, I am not at all sure that this was one such example. The example that he elaborated where the courts and a medical appeal tribunal might disagree and where it was right for the medical appeal tribunal not to be bound by the courts, seemed to me--I was listening as carefully as I could--to relate to a different issue which is not the subject of this amendment; namely, a case of over claiming. The two substantive points I sought to make in the amendment were not addressed by the Minister. Indeed, as regards the first point, he confirmed my concerns. He said that there was an appeal, beyond the medical appeal tribunal, to the social security appeals system, and there was an appeal from the lower courts to the higher courts. That merely confirms the point that he is running together two parallel sets of jurisdictions.
We instituted in the 19th century--as I am sure the noble Earl, Lord Russell, will confirm--a court of common law. Wherever that was harsh, it was overruled by a court of equity, particularly as regards matters such as married women's property settlements. It took Gladstone to realise that that was an absurdity because it meant that the rich had one system of law because they could mitigate the effects of common law by appealing to the court of equity, but the poor could not because they were lumbered with common law. As I say, it took Gladstone through the judicature Act to integrate the two and bring us one system of law. It seems to me that the Minister is unscrambling what Gladstone wisely put together and running parallel jurisdictions. The result will be conflicting judgments, confusion and the real problem of what courts in future may be bound by if it is discovered that the courts are coming to a different decision from that of the medical appeal tribunals. The Government should seek to avoid conflicting judgments and non-concurrent jurisdictions wherever they possibly can. We invite the Minister to do that.
The second point that the Minister failed to address was that the courts are likely to have superior and not inferior information to that which the medical appeal tribunal has. Nonetheless, on the basis of less adequate, less accurate, less informed and less specialist information, the medical appeal tribunal appears to be in a position to overrule the court's decision relating to the same issue. The Minister did not address that point at all in his reply. However, if he wishes to do so now, I would welcome that.
Lord Mackay of Ardbrecknish: I should point out an incontrovertible fact; namely, that the person has continued to claim benefit after the date on which the court said that his injury--if it was an injury--was no longer such that he ought to receive damages. He either
will continue to claim benefit after that point, or he will not. That is an incontrovertible piece of evidence on which to base this issue.
Baroness Hollis of Heigham: The question at issue is not whether he has continued to claim benefit, but rather to what degree the claiming of benefit is related to the medical condition on the basis of which he is receiving benefit. The medical appeal tribunal has inferior evidence to that of the court in determining the degree to which the disease, the illness or the injury has generated a condition to which benefit is attached. The Minister makes my point for me. I ask the Minister to think again about this matter because the case that he made against me relates to a different issue which is one of over-claiming. That is not germane to this amendment.
I offered him two arguments; namely, that we shall continue to have conflicting jurisdiction in the same case, and that a decision of a medical appeal tribunal will be binding irrespective of the decision of the courts. The Minister did not address that point. The courts--the first body to hear the evidence--may well have superior information to that of the medical appeal tribunal because it is based on specialist information and the cross-interrogation of the doctors concerned. The Minister has not addressed that point either. I hope that the Minister will therefore say that he will want to think about what we have said, as we must do. I invite the Minister to make that offer to us.
Lord Mackay of Ardbrecknish: As was the case with one or two of the previous amendments, I am not sure that we are not talking at cross purposes to some extent. We are talking about someone who continues to claim benefit and has a medical certificate which states the basis on which the benefit continues to be paid. In that case the medical appeal tribunal may decide that the recovery of benefit should encompass that period as well, even though the original court judgment indicated that no compensation award was to be given for that period because the man is now cured of his injury. If he is still applying for benefit because of that injury, clearly there is a contradiction. Perhaps the noble Baroness invites me to put down a clause which states that after the court makes its decision anyone who claims for any benefit related to these issues will not obtain it. However, I do not think that she wishes to be as harsh as that.
Earl Russell: Might it be helpful if the Minister consulted with his noble and learned clansman on this issue? If a compromise is to be found, I believe that the noble and learned Lord is capable of finding it. It is better to do it that way if we can.
Baroness Hollis of Heigham: I believe that we are talking at cross purposes. We must continue this debate outside the Chamber. We have in mind, for example, a disabled individual who may well be entitled to benefit. Whether or not the disablement is due to an accident, the issue relates to the extent of damages against which he can recoup.
However, we have probably pressed the issue enough. We fail to have a meeting of minds. I do not recognise the Minister's example; and he does not seem to recognise our concerns. Perhaps the issue needs to be explored outside the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 33:
The noble Lord said: This is a technical amendment which enables regulations to be made for referring questions to a medical appeal tribunal in a prescribed form and within a prescribed time limit and for the procedures to be followed by the tribunal. It is necessary because similar provisions in the Social Security Administration Act will not apply as a matter of course if this Bill is enacted. The amendment will provide, for example, for the precise format in which an appeal will be referred by the Secretary of State to an appeal tribunal and for appeals to be decided by majority decision.
The amendment also makes provision for non-disclosure of medical information submitted following an appeal. This will be used to prescribe that medical information will not be disclosed where it is in the interests of the victim not to do so, for example, where he is unaware that his condition has become terminal. I beg to move.
Lord McCarthy: Towards the end of the Minister's speech, I began to see the argument. However, perhaps he will spell it out. There may be another way of achieving the aim.
I object to the last part of his amendment, which states,
I understand that in the interests of mercy there may be a case for not telling people information of the kind that the Minister mentioned. But surely there are many other cases which do not involve that problem, where it would be in the interests of the victim to be told the full medical evidence and what the tribunals have said about him. I ask the Minister to explain that matter.
Page 7, line 25, leave out from ("provision") to end of line 26 and insert--
("(a) as to the manner in which, and the time within which, a reference under subsection (1) is to be made, and
(b) as to the procedure to be followed where such a reference is made.
( ) Regulations under subsection (6)(b) may (among other things) provide for the non-disclosure of medical advice or medical evidence given or submitted following a reference under subsection (1).").
"Regulations under subsection (6)(b) may (among other things) provide for the non-disclosure of medical advice or medical evidence given or submitted following a reference under subsection (1)".
No doubt the situation is quite common but it is not my chosen area and I could think of no reason why the individual should not have this information available to him. It seemed to me unfair. I would go so far as to say that it is contrary to the principles of natural justice. A claimant should have available to him or her the medical evidence which is before a medical appeal tribunal so that appropriate submissions on that medical evidence can be made. It is surely not fair to the claimant that decisions are made on information which he or she has not seen and cannot comment upon, including, for example, rebutting any factual inaccuracies.
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