NHS Redress Bill [HL]

I am grateful for the Minister’s very full reply and for the supportive comments of the noble Baroness, Lady Neuberger. I agree with the points that she has so ably made just now. The noble Lord is right: these amendments should be taken together. He kindly dealt with them individually but their purpose is to be looked at as a body of amendments in terms of what they jointly achieve. He is again right that, were they to be accepted, we would have a very different scheme. In our view it would be a much simpler and much more workable one. He said that their effect would overturn one of the key recommendations of the CMO’s document Making Amends. That may be so on one level, but we need to remind ourselves that the CMO’s recommendations were rather different from the proposals in the Bill. The chief difference was, of course, that he favoured a system that was not tort-based, whereas what we have in the Bill is a scheme that is reliant on the assessment of a qualifying liability in tort. That is a very different kettle of fish. I agree with the Minister that one of the desirable ends for any scheme is to achieve a change in the NHS to a culture of openness and transparency, if that is not an unrepresentative set of nouns to apply. However, the culture change would be promoted rather than hindered by not having the issue of legal liability hanging over NHS staff during any investigation. The fact that legal liability will be an ever present feature of any investigation is detrimental to openness rather than the reverse. I am sorry to say that the Minister failed to address the issues of non-independence and the inbuilt conflict of interest posed by the Government’s proposals. He also failed to address the issue of who should properly determine a tortious liability. Determining fault is a legal concept and function; I do not think that medical experts or the NHSLA can perform it. The NHSLA is not a judicial body. The Government are tasking it to undertake an in-house consideration of its own liability, which may result in an offer of compensation. The process is not appealable and has only limited susceptibility to judicial review. I wonder whether it conforms to the traditional principles of jurisprudence, let alone human rights principles. I do not agree with the Minister that our proposals would involve unacceptable double handling. On the contrary, I see the Government’s proposals as leading to double handling. At the end of the process as they have conceived it, an offer would be made to a claimant that the claimant might well reject. The whole palaver of having determined legal liability and assessed the quantum of compensation—not an easy process in many cases—will have counted for nothing because the patient walks away and decides to go back to square one and through the courts, let us suppose. Under our scheme, the fact-finding exercise would be used to advantage in the courts, if that is what the patient decided to do, because he would be armed with a dossier when he entered the courts. There the facts would be laid out before the court, agreed by all sides. I do not see it as an issue of duplication. At Second Reading, I think that I summarised the Government’s proposals by saying that they had decided on a trade-off between convenience and natural justice. The Minister referred to the Government’s scheme as holistic, which is a kind word. Perhaps a less kind description—a truer one—would be ““functionally incoherent””. The NHSLA would be both a party to the process and an investigator of fault. I have absolutely nothing against the NHSLA, its expertise, or any of the people who work in it. It is a fine body of people, but the wrong body to carry out an investigation that continues into the process of assessing and awarding compensation. Alternative proposals will emerge no doubt, as we proceed with these debates. I regret that there is such a fundamental divide between the Government and these Benches, but we shall endeavour to persuade the Minister with calm argument during the course of the Committee. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.