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NHS Redress Bill [HL]

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.