Hayman v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1951 |
| Docket Number | No. 66. |
| Date | 07 June 1951 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Sorn.
Public HealthNational Health ServiceSupplementary ophthalmic servicesQualifications for inclusion in list of ophthalmic opticiansExperience "to the satisfaction of the Secretary of State acting on the advice of the appropriate committee"Whether decision that of Secretary of State or that of committeeWhether decision open to challengeNational Health Service (Qualifications for Supplementary Ophthalmic Services) (Scotland) Regulations, 1948 (S. I. 1948, No. 1383 (S. 108)), Reg. 4.
The National Health Service (Qualifications for Supplementary Ophthalmic Services) (Scotland) Regulations, 1948, made under powers conferred on the Secretary of State by the National Health Service (Scotland) Act, 1947, provide, inter alia:Reg. 4. "The qualifications required by an ophthalmic optician for the purpose of Part IV of, and the Eighth Schedule to, the Act shall be that(a) he is in possession of one of the following diplomas or certificates ; or (b) he was immediately before the appointed day an optician on the list of the Ophthalmic Benefit Approved Committee constituted under the National Health Insurance Act, 1936; (c) he has been in practice as an ophthalmic optician for fifteen out of the previous twenty years, including five years between the 1st day of October 1930 and the 30th day of September 1937, and that he shall, to the satisfaction of the Secretary of State acting on the advice of the appropriate committee, have had adequate, including recent, experience as an ophthalmic optician."
Two ophthalmic opticians, who had each been in practice as such for over twenty-five years before the appointed day, and who immediately prior thereto had been on the list of the Ophthalmic Benefit Approved Committee under the 1936 Act, applied for inclusion in the list of ophthalmic opticians qualified to give service under the supplementary ophthalmic services of the National Health Service. Their applications were refused, and they brought an action against the Secretary of State and the appropriate committee, concluding, inter alia, for reduction of the committee's decision to refuse their applications, for reduction of the Secretary of State's determinations refusing their applications and for declarator that they were entitled to be included in the list. In support of their case, they averred that the committee had failed to make proper inquiry into their experience and qualifications in a number of respects which they specified. For the defenders, it was contended that the decision was, under the Regulations, a matter for the Secretary of State and that the Court could not interfere with him in that decision.
Held (1) (rev. judgment of Lord Sorn) that the effective decision as to the admission or exclusion of an applicant was that of the committee, although the Secretary of State might, in appropriate circumstances, refer back to the committee for further consideration; and (2) that the Court was therefore not excluded from considering the sufficiency and legality of the committee's investigations; and a proof before answer, limited to the reductive conclusions, allowed.
John Myers Hayman and Arthur Coutts brought an action against His Majesty's Advocate, as representing the Secretary of State for Scotland, and the Central Professional Committee for Opticians (Scotland) and the office-bearers and members thereof, concluding,inter alia:"(3) For production and reduction of the minute, resolution or other documents recording and embodying the decision of the second-named defenders to refuse the applications of the pursuers for inclusion in the list of ophthalmic opticians prepared under and by virtue of the National Health Service (Scotland) Act, 1947,1 and particularly section 42 thereof. (4) For production and reduction of the determination of the Secretary of State for Scotland dated 14th October 1948 addressed to the pursuers purporting to refuse the pursuers' applications for inclusion in the list of ophthalmic opticians prepared under and by virtue of the National Health Service (Scotland) Act.
1947, and particularly section 42 thereof. (5) For production and reduction of the determinations of the Secretary of State for Scotland dated 22nd March 1950 pretending to refuse the pursuers' applications for inclusion in the said list of ophthalmic opticians. (6) For declarator that the pursuers are entitled to be included in the list of ophthalmic opticians prepared under and by virtue of the National Health Service (Scotland) Act, 1947, and particularly section 42 thereof and the Statutory Instruments issued under the said Act and particularly the said Regulation 4 of the Statutory Instrument No. 1383 of 1948. "
The following narrative2 of the circumstances and of the pursuers' averments is taken from the opinion of the Lord Ordinary (Sorn):"The pursuers are two ophthalmic opticians who, prior to the coming into force of the National Health Service (Scotland) Act, 1947, had practised as such for twenty-seven and twenty-five years respectively. In March 1948 they each received a notice from a committee, styling itself the Central Professional Committee for Opticians (Scotland), to the effect that applications for inclusion in the list of ophthalmic opticians entitled to participate in the supplementary eye service under the Act were to be made to the committee on, or before, 31st March 1948. Both pursuers applied for inclusion. In August 1948 both pursuers received letters from the committee stating that two individuals named therein (who were members of the committee) were authorised to inspect their premises and records, and requesting the pursuers to give the necessary facilities. Visits to each of the pursuers were duly made by these two individuals at which their premises were inspected and certain inquiries were made. According to the pursuers, these inquiries were somewhat perfunctory and they received no indication from the representatives of the committee that this was to constitute the only investigation into their applications. On or about 12th August 1948 each pursuer received a letter from the said committee, stating that the committee was unable to advise the Secretary of State to accept his application. Both pursuers then asked the committee to reconsider their applications and to state the grounds of the decision, but in each case the reply, which was sent to their solicitor, was to the effect that the grounds of decision could not be disclosed and an inquiry was added as to whether the solicitor wished the committee to intimate an appeal to the Secretary of State on behalf of his clients, or whether he would do this direct. The pursuers subsequently lodged appeals with the Secretary of State. On or about 14th October 1948 the pursuers' solicitor received a letter from the Department of Health, on behalf of the Secretary of State, in reply to the appeals, in which,inter alia, it was said that the
Secretary of State is advised that he is not entitled to disregard the recommendation of the committee by acting in any manner which would be contrary to it. The letter concludes by pointing out that the Regulations make no provision for any appeal against the Secretary of State's decision."
The pursuers pleaded, inter alia:"(3)Separatim. The decision of the committee having been made (1) without proper inquiry into the pursuers' respective qualifications and experience as required by Regulations, and (2) the committee having acted...
To continue reading
Request your trial
-
Watt v Lord Advocate
...its decision will be a nullity. If authority for this proposition is necessary it can be found in cases such as Hayman v. Lord AdvocateSC 1951 S.C. 621 and more recently in the House of Lords in the case ofAnisminic. I content myself by quoting at this point mainly from the speech of Lord R......