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NHS Redress Bill [HL]

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.