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NHS Redress Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. Amendment No. 3 is a drafting amendment consequential on Amendment No. 6, which we discussed in the last group and Amendment No. 7 is a consequential drafting amendment to Amendment No. 10, to which we shall come later. It may be convenient for the House if I explain the legal advice that I have received on Amendments Nos. 3A, 3B, 7A and 7B. I understand that the amendments question the drafting of Clauses 6(1) and 8(1). The noble Earl, Lord Howe, has written to me about this. I know that he is concerned that the wording of Clauses 6(1) and 8(1) could give rise to ambiguity or incoherence. I have consulted my legal advisers—we have been back to parliamentary counsel on this—and I am satisfied that there is no realistic risk of that. I hope that I can provide some reassurance. This will be rather technical, but it is important that we put this on record. The general powers in Clause 6(1) are intentionally subject to the duties imposed by Clauses 6(2A) to (4).  Clause 6(1) appears to give the Secretary of State an unfettered discretion, but that discretion is in fact fettered by subsections (2A) to (4).  In the context of the clause, we think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear.  Amendment No. 3B does not assist the reader of the Bill, as his attention is no longer helpfully drawn to the fact that the Secretary of State’s power is qualified. Furthermore, Amendment No. 3B causes ambiguity and confusion as the reader’s attention is now drawn to subsection (2B). Yet subsection (2B) merely confers another power. The reader’s attention is therefore drawn to another power. The power in subsection (2B) is linked to the duty in subsection (2A), but the reader’s attention is not drawn to subsection (2A). As I said, I have taken legal advice, including that of parliamentary counsel, and do not accept that there is, or could be, any realistic risk of ambiguity regarding the drafting of Clause 6(1). The Commons amendment to Clause 6(1) is properly drafted, according to the legal advice that I have been given. It helpfully draws the reader’s attention to the fact that the power conferred by subsection (1) is subject to the duties imposed by subsections (2A) to (4). On Amendment No. 7, the general powers in Clause 8(1) are intentionally subject to the duties imposed by Clauses 8(2) to (4). Clause 8(1) appears to give the Secretary of State a discretion, but this discretion is in fact fettered by subsections (2) and (4) of that clause. In the context of the clause, we again think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear. Amendment No. 7B, again, would no longer helpfully draw the attention of the reader of the Bill to the fact that the Secretary of State’s power under Clause 8(1) is qualified. For these legal reasons, I encourage noble Lords not to pursue Amendments Nos. 3A, 3B, 7A and 7B and to accept Commons Amendments Nos. 3 and 7. Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Warner.)