British Medical Association v Greater Glasgow Health Board

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Jauncey of Tullichettle,Lord Lowry
Judgment Date16 March 1989
Judgment citation (vLex)[1989] UKHL J0316-3
CourtHouse of Lords
Docket NumberNo. 4.
Date16 March 1989
British Medical Association
(Respondents)
and
Greater Glasgow Health Board
(Appellants)
(Scotland)

[1989] UKHL J0316-3

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Templeman

Lord Jauncey of Tullichettle

Lord Lowry

House of Lords

Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Jauncey of Tullichettle. I agree with it, and would dismiss the appeal for the reasons he gives.

Lord Brandon of Oakbrook

My Lords,

2

For the reasons set out in the speech to be delivered by my noble and learned friend, Lord Jauncey of Tullichettle, I would dismiss the appeal.

Lord Templeman

My Lords,

3

For the reasons to be given by my noble and learned friend, Lord Jauncey of Tullichettle, I would dismiss the appeal.

Lord Jauncey of Tullichettle

My Lords,

4

This appeal arises out of a dispute between consultants at the West of Scotland Regional Plastic Oral Surgery Unit at Canniesburn Hospital, Glasgow, and the Greater Glasgow Health Board. The sole issue raised by the appeal is whether a health board constituted under the National Health Service (Scotland) Act 1978 is entitled to immunity from interdict proceedings by virtue of section 21 of the Crown Proceedings Act 1947. It is necessary to say no more about the dispute than that it concerned the appointment of a director of the unit. The Lord Ordinary (Lord Prosser, 1988 S.L.T. 130) granted interim interdict against the health board "from interviewing candidates for the position of Director of the Plastic and Oral Surgery Unit, Canniesburn Hospital, Glasgow." The interdict sought was at the instance of the British Medical Association who represent the consultants in dispute, and extended also to the appointment of a director, but in view of an undertaking by the health board to make no appointment until certain agreed disputes procedures had been exhausted, interdict against appointment became unnecessary. The health board reclaimed the Lord Ordinary's interlocutor but the Second Division refused the reclaiming motion.

5

The health board have now appealed. However in the interval which elapsed between the interlocutor of the Second Division of 10 March 1988 and the hearing of the appeal in this House the disputes procedures were exhausted and a director was appointed. It followed that the question of whether interim interdict should stand or be recalled had become academic. Nevertheless counsel for the appellants moved your Lordships to hear the appeal for two reasons, namely:

  • (1) that a live issue still existed between the parties in relation to expenses in the courts below and costs in this House, and

  • (2) that the question raised by the appeal was one of general importance which would be likely to arise again in disputes between the British Medical Association and its members on the one hand and health boards on the other.

6

Counsel for the respondents did not oppose this motion. Your Lordships took the view that as there was still a lis between the parties it would be proper to hear the appeal.

7

In addressing the question of whether a health board is entitled to immunity from interdict proceedings it is necessary in the first place to look at the relevant statutory provisions. Section 36(1) of the National Health Service (Scotland) Act 1978 provides:

"It shall be the duty of the Secretary of State to provide throughout Scotland, to such extent as he considers necessary to meet all reasonable requirements, accommodation and services of the following descriptions — ( a) hospital accommodation, including accommodation at state hospitals; ( b) premises other than hospitals at which facilities are available for any of the services provided under this Act; ( c) medical, nursing and other services, whether in such accommodation or premises, in the home of the patient or elsewhere."

8

Section 2(1) of the Act of 1978 (as amended by paragraph 1 of Schedule 7 to the Health and Social Services and Social Security Adjudications Act 1983) provides, inter alia:

"The Secretary of State shall by order constitute in accordance with Part I of Schedule 1 boards for such areas as he may by order determine, for the purpose of exercising such of his functions under this Act as he may so determine…"

9

Paragraph 1 of Schedule 1 to the Act of 1978 provides that a health board shall be a body corporate and shall have a common seal. Subsections 8 and 9 of section 2 are in the following terms:

"(8) A Health Board shall, notwithstanding that it is exercising functions on behalf of the Secretary of State, be entitled to enforce any rights acquired, and shall be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions), in the exercise of those functions in all respects as if the Health Board were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Health Board in its own name. (9) A Health Board shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents; but this subsection shall be without prejudice to any right of the Crown to withhold, or procure the withholding from production of, any document on the ground that its disclosure would be contrary to the public interest."

10

Although health boards are creatures of the Act of 1978 the functions which they perform were previously carried out by regional hospital boards and boards of management under the National Health Service (Scotland) Act 1947. That Act imposed on the Secretary of State duties similar to those imposed upon him by section 36(1) of the Act of 1978. Section 13 of the Act of 1947 was in the following terms:

"(1) A Regional Hospital Board shall, notwithstanding that they are exercising functions on behalf of the Secretary of State and a Board of Management shall, notwithstanding that they are exercising functions on behalf of the Regional Hospital Board be entitled to enforce any rights acquired, and shall be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions), in the exercise of those functions, in all respects as if the Regional Hospital Board or Board of Management, as the case may be, were acting as a principal, and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Regional Hospital Board or Board of Management, as the case may be, in their own name. (2) A Regional Hospital Board or Board of Management shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents, but this subsection shall be without prejudice to any right of the Crown to withhold or procure the withholding from production of any document on the ground that its disclosure would be contrary to the public interest."

11

Section 13 of the comparable English Act, the National Health Service Act 1946, was in virtually identical terms. Section 21 of the Crown Proceedings Act 1947, which was later in time than the National Health Service (Scotland) Act 1947 is, so far as relevant, in the following terms:

"(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that:-( a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; … (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown."

12

Against this statutory background Mr. Maclean for the appellants propounded two alternative tests for determining whether a body fell to be treated as the Crown for the purposes of section 21. In the first place the Crown extended to Her Majesty's government in the United Kingdom and those persons and bodies which are appointed or created to carry out exclusively the functions of the executive government. In the second place the Crown included a body, person or corporation whose essential activities were carried out exclusively in the performance of a duty or the exercise of a power which is imposed upon or vested in the executive government by statute or prerogative. Such a body might be a government agency. A health board, it was said, satisfied both these tests. In support of this argument Mr. Maclean referred to a number of authorities as showing that the Crown embraces agencies which carry out the executive functions of government on its behalf. In British Broadcasting Corporation v. Johns [1965] 1 Ch. 32 Diplock L.J., in considering whether the B.B.C. were entitled to Crown immunity from payment of taxes, said, at p. 79B:

"But to use the expression 'the Crown' as personifying the executive government of the country tends to conceal the fact that the executive functions of sovereignty are of necessity performed through the agency of persons other than the Queen herself. Such persons may be natural persons or, as has been...

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