My Lords, I am also rather nervous. I spoke at Second Reading about how worried I was by the exclusion of the ombudsman—the PHSO—from the provisions to create a safe space for investigations carried out by the HSSIB. The safe space is of enormous significance, although I agree with the noble Baroness, Lady Kramer, that there is an issue about where whistleblowers fit—that is right. We need the safe space but, as currently drafted, the Bill cuts across the unique and long-standing role of the Parliamentary and Health Service Ombudsman to investigate complaints about the NHS. Although I take the point of the noble Baroness, Lady Young of Old Scone, that the number of cases are very few, there is a constitutional principle here.
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There could be serious consequences for members of the public who use the ombudsman service, for the health sector more broadly, particularly looking at system failure, and for the reputation of, and trust in, the ombudsman. It is, however, worse than that. Parliament gave the ombudsman extensive powers, equivalent to those of the High Court, both in 1967 and again in 1993, to access information from all areas of public administration, including the NHS. If this amendment is not accepted, the ombudsman will, in fact, be partially stripped of those powers, including the routine right to investigate fully a tranche of patient-safety cases without going to the High Court first. This is quite serious: it is a constitutional issue, and it violates the 2019 Venice principles—Principles on the Protection and Promotion of the Ombudsman Institution — and the 2020 UN General Assembly resolution, which was co-sponsored by the UK Government. It is a constitutional change by the back door.
If the ombudsman is unable to investigate robustly all aspects of complaints about the NHS, except with the permission of the High Court, patients may find it harder to get access to justice. The NHS may well become less accountable for its system failings, and the ombudsman will inevitably become judicialised, which we really do not want and was explicitly warned against by Court of Appeal judges, anxious to preserve non-legal approaches to dispute resolution.
The Bill at present has things completely the wrong way around. We all agree—it is enormously clear that agreement has broken out across the Committee—that coroners should not have access to the safe space. We all agree about that—what we do not agree on is the PHSO. In the Bill, the coroners have access and the PHSO does not. This does not make sense. If the coroners have access to the safe space and the PHSO does not, we have quite a serious situation. The noble Baroness, Lady Young of Old Scone, is completely right to say that coroners’ inquests are becoming increasingly adversarial; there is a real risk of individuals’ names being mentioned and fingers of blame being pointed during proceedings, as watching an inquest shows.
If I were a health professional, I would be nervous in these circumstances of giving information to the safe space. Allowing coroners access will discourage healthcare professionals from disclosing matters frankly to the safe space. The ombudsman, on the other hand, does not name names, but looks at institutional failures rather than individual ones, and points to system failures. Without the ombudsman’s work, and without its having access to the safe space once it exists, how would the ombudsman be able to do the sort of work that it has done on some of the most remarkable issues, such as issues to do with people with learning disabilities in the health service or issues to do with eating disorders. We could give other examples.