NHS Redress Bill [HL]

moved Amendment No. 39:"Page 3, line 40, at end insert—" ““(   )   A scheme must provide that a waiver made under subsection (3) shall be effective only if the individual making it has received appropriate legal advice from a suitably qualified person who has certified that a full explanation of the terms of settlement and of the waiver has been given to the individual.”” The noble Earl said: In moving this amendment I shall speak also to Amendments Nos. 45 and 47. The amendments relate to the provision of legal advice. The first issue is that of the waiver of rights to litigate. If we are to have the Government’s proposed scheme, the waiver of rights should apply only on the strict basis that good quality legal advice has been given about all aspects of the redress scheme and its implications for subsequent proceedings. Anything else would not be fair to the victim. The type of certification proposed in the amendment would be analogous to compromise agreements, which are an established feature of employment law. The person receiving the advice would also certify that he had understood it. The Minister may well argue that the amendment is unnecessary because the claimant would have access to legal advice under Clause 8. I will discuss Clause 8 later, but even if we were to accept a ministerial assurance about the availability of advice, Clause 8 does not quite cover my point that legal advice prior to settlement should be an absolute and immutable requirement of the scheme itself. That is why, in Amendment No. 45, I propose that a scheme ““must”” rather than ““may”” make such provision as the Secretary of State thinks fit for the provision of legal advice without charge. ““May”” to ““must”” is a classic Committee emendation, but without the guarantee of paid-for legal advice, a patient cannot be expected to waive his rights to bring civil proceedings. It would be helpful if the Minister could say something about the actual process of getting legal advice and paying for it. Presumably, there will have to be one of two possible systems of paying for the legal advice: either the scheme authority will need to reimburse the claimant’s reasonable legal expenses or the funding will come through the Legal Services Commission. I would be grateful if the Minister could explain which it will be. I beg to move.