A message was received from the Commons, that they disagree to an amendment made by the Lords; they insist on certain other amendments to which the Lords have disagreed; and they have made an amendment in lieu, to which they desire the agreement of the Lords.
My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
commons amendments
[The page and line references are to Bill 137 as first printed for the Commons.]
4: Clause 6, Page 4, line 13, leave out from “scheme” to end of line 15
The Lords agree to Commons Amendment No. 4 and propose Amendment No. 4A to it—
4A: Line 1, at end insert “and insert “in accordance with natural justice such that the person overseeing the investigation is independent of the body or person under investigation (such investigation to be confined to the facts of cases and not to consider issues of liability in law, whether civil or criminal);””
5: Page 4, line 17, leave out paragraph (c)
The Lords disagree to Commons Amendment No. 5 for the following reason—
5A: Because it is appropriate to ensure the separation between fact-finding and assessment of liability under the scheme
16: Clause 11, Page 6, line 26, leave out from “scheme” to end of line 27
The Lords disagree to Commons Amendment No. 16 for the following reason -
16A: Because it is appropriate to ensure the separation between fact-finding and assessment of liability under the scheme
The Commons disagree to Lords Amendment No. 4A, insist on Commons Amendments Nos. 5 and 16, but propose Amendment No. 16B in lieu—
16B: Page 4, line 13, after “scheme” insert “(including provision for the overseeing of the investigation by an individual of a specified description)”
My Lords, I beg to move Motion A, that the House do not insist on its Amendment No. 4A to which the Commons have disagreed, do not insist on its disagreement to Commons Amendments Nos. 5 and 16 on which the Commons have insisted, and do agree with the Commons in their Amendment No. 16B in lieu.
I am pleased that we seem to have reached agreement on a way forward. The House has discharged honourably its role in scrutinising this Bill carefully, and I am certainly very grateful to the Benches opposite for their constructive approach to legislation that will bring benefits to patients.
Moved, That the House do not insist on its Amendment No. 4A to which the Commons have disagreed, do not insist on its disagreement to Commons Amendments Nos. 5 and 16 on which the Commons have insisted, and do agree with the Commons in their Amendment No. 16B in lieu.—(Lord Warner.)
My Lords, there are occasions when despite all that has gone before it is right for this House to bow to the will of the elected Chamber. With a considerable measure of regret, I believe this to be one such occasion. Your Lordships’ House has asked the other place to think again; the other place has rejected our amendments on two separate occasions. It is therefore time to let the Bill pass.
I say that with regret because I believe as strongly as ever that the Bill represents a missed opportunity. With a little more readiness by the Government to recognise the point of principle underlying our earlier amendments, and a greater willingness on their part to achieve a meeting of minds, the Bill could have been improved very significantly. I recognise, of course, that the Government have made concessions, and I do not belittle those in the slightest. But the key point of principle that we asked them to consider and agree to is not, in the end, one on which they have seen fit to give way. That is an enormous pity and I believe that the losers from that decision will be patients.
I hope that the Minister will allow me to use this opportunity to ask him a couple of questions arising from the amendment passed in another place today. First, can he give us further details of the intention behind the amendment, because I am genuinely puzzled as to why the amendment is necessary if it is simply to achieve the result described by the Minister in another place? It may be designed to give the critics of the Bill on this side of the House some comfort, and of course I welcome that motivation, if it is that. But, if it is purely about qualifications and experience, the Government could have ensured that those stipulations were met in any event, without the need for an amendment.
Secondly, will there be an opportunity for the Opposition parties to look informally at the draft regulations that are to be laid? It would be enormously helpful if we could be afforded that opportunity to enable us to engage with the Minister on the detail of the regulations at a reasonably early stage.
Thirdly, I should be grateful if the Minister could shed a little more light on one aspect of the redress scheme, which I confess I still find puzzling. That is the issue of privilege. We debated this the last time that the Bill was in this House, and I know that the Minister was trying to be helpful on that occasion. As I understand him, he told us that expert medical reports are not to be privileged, yet any offer made by the NHSLA is to be without prejudice. I still cannot see how those two positions can be compatible. If an offer is made without prejudice it means that it is not to be regarded as an admission of liability for the purposes of subsequent litigation. Therefore, it seems to be a recipe for chaos: someone could go through the redress scheme, receive an offer, reject it with all legal rights intact and walk away, armed with material that would ordinarily be privileged under the usual rules and practice of common law. I question whether what the Minister told us will be achievable in practice.
The point was made eloquently in the Explanatory Notes for the Inquiries Act at paragraph 9, which says,
“as subsection (2) is designed to make clear, it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact”.
The solution proposed by the Opposition would have meant that by separating fact-finding from fault-finding the Bill would have provided a conceptual and physical separation between privileged and non-privileged information. Arising from those considerations, my understanding is that in practice fact-finding and fault-finding will amount to two separate processes within the ambit of the scheme. Can the Minister confirm that? If he can, then quite possibly the dilemma that I have just tried to point out may not arise because it would remain possible for the NHSLA to treat some information as privileged and some as non-privileged.
If the investigatory process is single and undivided, it seems inevitable to me that at least some information will have to remain privileged, leaving open the possibility for the authority, without any disrespect to it, to duck and dive behind the concept of privilege whenever it wanted to. As I understand it, that is not what it would want and not what the Government want, and I think it should be avoided if possible.
In the knowledge that the noble Baroness, Lady Neuberger, has some further points to add, I shall leave my remarks there. I want to express my thanks to her, to her colleagues on the Liberal Democrats Benches for their support and to the Minister for his courteous and considerate replies at all stages of the Bill. Putting our apprehensions aside, we genuinely wish the redress scheme all success, not only for the sake of the NHS but also, and more importantly, for the sake of patients.
My Lords, like the noble Earl, Lord Howe, we have come to the conclusion that having sent the Bill back to another place on two occasions, and it having been returned, we probably now have to rest our case. When we saw Amendment No. 16A, published on Thursday, we believed that a major concession had been made, allowing in regulations a definition of the person investigating the facts to be in some way independent of the NHS organisation concerned. It did not state that in terms, but we thought that that might well be the intention behind Amendment No. 16A.
Imagine our distress to discover this morning in a meeting with the Minister in another place, Andy Burnham, that independence was not to be brought in here and that, despite trying twice to send the Bill back to the Commons with the feelings of all sides of this House on the subject being made clear, we had not persuaded the Government that trust in the scheme was of the greatest importance and that independent oversight was therefore essential. Although I accept that we shall not press this further, I would be enormously grateful if the Minister could give us a clue as to the intentions behind Amendment No. 16A if it is not to include some element of independence in oversight of the fact-finding.
We are somewhat reassured by the fact that if someone is dissatisfied he can go to the ombudsman. That applies only in cases of maladministration. We are still left with two major concerns. The first, which we have all raised in debating this issue on several occasions and which was so ably expressed by the noble Baroness, Lady Murphy, when we last debated it, is that people just do not trust documents on the same writing paper as that of the organisation about which they have originally complained. We are delighted that the reports will be made available to the patients. We regard that as a major step forward. We had hoped to see more progress on some of the other issues and would love to know why the Government did not feel able to meet us at least halfway on the question of independent oversight.
There is one more area, about which I hope the Minister will give me permission to ask. As the Minister in another place stated this afternoon, there is to be a review of all this. He assured Members that the review would examine whether the way that the redress system works promotes that learning culture about which we are all concerned; whether it reduces costs to the National Health Service; and whether it deals properly with patient safety issues. It would be good to know from the Minister when—after how long—such a review of the redress system will take place. Indeed, it would be excellent if he could tell us whether there would be an independent element in such a review beyond the work that the Healthcare Commission will be carrying out regularly in assessing whether the scheme is operating properly.
With that, I thank the Minister for the concessions that he has made and for the way in which he has dealt with all the debates and discussions that we have had on this issue. I thank the noble Earl, Lord Howe, for all the work that he has done with colleagues in another place on the matter, all noble Lords who have taken part in the debates and the many outside bodies that have made representations to us all. I also thank the Bill team for all its work, up to and including this morning.
We all welcome the Bill. I still believe that it could be a better piece of legislation, but we will have to wait to see how it works before we can judge. I look forward to taking a close interest in the coming months and years.
My Lords, in adding my congratulations to the Minister on what is essentially a good piece of work, I would like to press him a little further on the meaning of Amendment No. 16A and whether in regulations it would be possible to provide for that independence that, when I first saw the amendment, I thought was being introduced as a response to our previous amendments. Will he clarify the extent of Amendment No. 16A? That would provide some reassurance.
My Lords, I will do my best to respond to the points made by noble Lords. The amendment to which we are asking noble Lordsto agree is Amendment No. 16B, not AmendmentNo. 16A. The amendment in lieu of the amendment made in this House, which was passed earlier today in the other place, specifically enables the scheme to provide for investigations to be overseen by a person of a specified description. This amendment will enable the scheme to specify the qualifications and experience that the person who oversees the investigation by the scheme member at the local level must have.
That will benefit patients, who will now know who has overall responsibility for the investigation into their case and who to contact about the investigation. That is the purpose here. I hope that that gives some reassurance to those on the Benches opposite and to the noble Baroness, Lady Murphy, who have shown great persistence on the issues that they have been pursuing. I commend them for their persistence, even if it has on occasion been slightly uncomfortable to be on the receiving end of it. I acknowledge that there were heartfelt views, and we have tried to clarify the issue of oversight and the specification of the person who might have it.
The noble Baroness, Lady Neuberger, asked me why we did not accept some of the proposals that she and the noble Earl, Lord Howe, put forward. I do not want to go over all that ground again, but there were issues about putting proposals in the Bill when their workability could not be guaranteed. I asked some relevant questions that need to be answered before we put that kind of wording in the Bill. There would still be some issues to be teased out if that approach were to be adopted. Essentially, the problem was workability. We were also concerned that it could lead to dual bureaucracy, and there was a largely unanswered question about who would decide if the overseer and the investigator from two different entities disagreed about what should be in the report. We did not resolve that issue. The issues of the workability and credibility of the scheme meant that it could not go in the Bill.
The noble Earl, Lord Howe, raised the issue of privilege. I shall have another go. This is a complicated area, and if I do not satisfy him, I am happy to have a discussion with him afterwards and to write to him at greater length. The advice I have been given is that a claim for privilege—which is, in effect, to prevent disclosure to another party—can be made if a document is a communication between a solicitor and a third party which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice. If an investigation report is prepared as a matter of course to find out the cause of the accident and to avoid future occurrences, as is the case in this legislation, and is to be provided to individuals, as is envisaged under the redress scheme, it would not satisfy the test for privilege. That is the legal advice that I have been given. I hand it over to the noble Earl in a spirit of helpfulness.
The noble Earl asked whether the regulations could be looked at in draft. They will be subject to a public consultation of three months, so there will be ample time for the Benches opposite, and anybody else who wishes to, to examine them in detail and to raise issues about them. I remind the House that the regulations are subject to the affirmative procedure, so they will be debated in both Houses.
We indicated—I think it was in Committee—that there would be a review of the scheme after three years. The precise way in which that review will be conducted will be decided nearer the time. I think my colleague in the other place, Andy Burnham, confirmed earlier today that the review could cover areas that are troubling Members on the Benches opposite. There will be an opportunity to look at this again when reviewing the scheme at the end of that period.
That is my best shot at answering the points that were raised. I am happy to write in more depth if noble Lords wish.
On Question, Motion agreed to.