House of Lords
Arrangement of Business
(10 years, 4 months ago)
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Lord Newby (LD)
My Lords, it is a firm convention that the House rises by about 3 pm on sitting Fridays. If Back-Bench contributions are kept to around six minutes on all three Second Readings, the House should be able to rise shortly after 3 pm.
Medical Innovation Bill [HL]
(10 years, 4 months ago)
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Lord Saatchi (Con)
My Lords, what a privilege it is to address your Lordships’ House with so many distinguished Peers and noble and learned Lords in their places today. I thank the usual channels for arranging the time for the debate, and my noble friend the Minister. The Medical Innovation Bill can be regarded as one of the many initiatives being taken in his innovation agenda to advance medical science, along with early access to medicines, the cancer fund, the genomics project et cetera.
I congratulate the Minister’s department for a model consultation on the Bill. A full-scale public consultation of this kind is an enormous undertaking and it has carried it out brilliantly. I understand that the public service ethos not only exists but is alive and well in our top civil servants, and is nurtured by them in the true spirit of Northcote-Trevelyan. In particular I thank the director of legal services in the Treasury Solicitor’s Department, Isabel Letwin; the head of legislation, Ian Dodge; his deputy, Peter Howitt; Jenny Harper; and Jenny Munday.
Advice has been received from over 20,000 doctors, patients, charities, the Royal Colleges and many other medical and legal organisations. I thank them all. I should say that the noble Lords, Lord Patel and Lord Kakkar, who cannot be here today, have asked me to express their strong support for the Bill.
It is hard to overpraise the distinguished former parliamentary counsel, Daniel Greenberg—the draftsman of the Bill—and Dominic Nutt and Liz Scarff, who have managed parliamentary and media liaison. My warmest thanks are due to Debbie Binner, whose daughter Chloe died of cancer aged 18; Alex Smith, whose son Harrison suffers from cruel Duchenne disease; Mavis Nye, a lung cancer victim; and the hundreds of other families whose stories have all been part of the Bill from the outset.
The Medical Innovation Bill has been on a long, winding and sometimes bumpy road, as it should. My noble friend Lord Strathclyde, who was the Leader of our House, says it should be hard to change the law. There are many hurdles, even for Governments. So it should be and so it is. Whatever happens to the Bill now, I have made lifelong friends in the medical and legal worlds, from whom I have learnt so much and to whom I am so grateful.
I will start by laying out the parliamentary status of the Bill. It was originally introduced in your Lordships’ House at the end of 2012. In October 2013 Michael Ellis, the Member of Parliament for Northampton North, introduced the Bill in another place. In November 2013 the Secretary of State for Health expressed the Government’s intention to bring forward early legislation, subject to the public consultation, which closed in April this year. On 1 May the Secretary of State asked Sir Bruce Keogh, the medical director of the NHS, to advise on the safeguards in the Bill. I am sure that the Minister will bring us up to date. I am greatly encouraged by what I have heard about Sir Bruce’s work.
The government Chief Whip advises that, if no amendments are tabled in your Lordships’ House, the Bill will go to another place before the Summer Recess. Amendments can then be laid there in Public Bill Committee. Then, all being well, the Bill will go to Her Majesty for Royal Assent in February 2015 and become an Act of Parliament before the next general election.
I turn to the Bill. In our House a précis is a form of good manners. The best summary I can give you of what this Bill is about comes from Professor Norman Williams, the President of the Royal College of Surgeons, who sums it up in six words:
“Protect the patient: nurture the innovator”.
That is exactly what the Bill does. I will explain.
“The sentence of this Court is that you be taken from hence to the place of execution and that each of you there will be hanged by the neck until you be dead. And may Almighty God have mercy on your souls”.
So wrote Charles Dickens, 150 years ago. It sounds medieval—barbaric even—does it not? Yet much the same can be heard in every cancer ward in every NHS hospital every hour of every day, with only one difference. In Dickens, the condemned were sentenced to death by a court of law. I am not aware that the cancer dead or the victims of any other terrible disease are guilty of any crime. Death by hanging, by firing squad, by electric chair—no human being has ever devised a more brutal execution than death by cancer. Perhaps only the Benches of the right reverend Prelates can advise us on the vexing theological question of why bad things happen to good people.
Either way, those condemned by cancer suffer a worse fate than the worst mass murderer. While they await execution, they are tortured. For them, hair loss is the good news. Less good news is that their treatment regime—the drugs and the cycles of their administration, and the surgical procedures—are often 40 years old. They create the same symptoms as the disease: nausea, diarrhoea, vomiting and fatigue. A beautiful woman’s legs turn into elephant’s legs; her arms begin to make a heroin addict’s arms look attractive; and her bosoms turn into raisins. That is before the bad news: the discovery that standard cancer treatment does such damage to the immune system that the cancer patient is quite likely to die from fatal infections such as MRSA, E. coli and so on—like Mrs Goodrum, aged 46 and a mother of five, who died a few weeks ago of septicaemia during her chemotherapy.
In my visit with my honourable friend Michael Ellis to the NHS hospice in Northampton, the wonderful volunteers explained to me that 80% of the patients in their hospices are cancer patients. Average life expectancy is six weeks. If they leave the hospice, it is two weeks. It would take quite a few of the biggest JCBs of my noble friend Lord Bamford to dig the mass grave for the 165,000 British cancer dead this year—the same as last year and the same as next year. With current UK mortality rates, this looks like reliable repeat business for gravediggers—and for grave-robbers, too. For them, it is quite easy. After Hamlet and Laertes leave Ophelia’s grave, they jump into it with a claim against her doctor for failure to diagnose her suicidal tendencies, and another against the river authority for failure to put out adequate warning notices to swimmers.
The law cannot cure cancer—Parliament’s power, though awesome, is not sufficient. Only science can do that. However, the law does have the power to change the culture. Let us consider its impact on attitudes to race, drink-driving, homosexuality and smoking in public places. No amount of exhortation or guidance from on high could have achieved what the law has done. This law change will not cure cancer but it will encourage the man or woman who will.
All cancer deaths are wasted lives. Scientific knowledge does not advance by one centimetre as a result of all these deaths, because the current law requires that the deceased receive only a standard procedure—the endless repetition of a failed experiment. In this way, the current law is a barrier to progress in curing cancer. It defines medical negligence as deviation from standard procedure. In other words, any deviation from standard procedure by a doctor could currently result in a verdict of guilt for medical negligence. However, as innovation is deviation, non-deviation is non-innovation. Sticking to the status quo—I am looking anxiously at the noble Lord, Lord Giddens—does not meet Professor Popper’s The Logic of Scientific Discovery: refutation by application. If there is no application, there is no refutation and no science. This is at least one reason why there is no cure for cancer.
As a result of this change in the law, medical practitioners will be encouraged rather than discouraged to seek improvement to the standard procedure. This Bill achieves that in a safe and responsible way. I shall not make any attempt to describe the legal status of the Bill—certainly not in front of a former Lord Chancellor and a former Lord Chief Justice. I shall simply say that the Bill achieves its aim—safe and responsible innovation—in a simple way. It moves the Bolam “responsible persons” test from after the event to before the event. The result is that doctors are not obliged to speculate in advance about what might happen in a subsequent trial, and they can move forward with confidence, safe in the support of a responsible body of medical persons—in other words, the Bolam test brought forward. This crucial time change removes any uncertainty and ambivalence about what is or is not lawful medical innovation.
If I may, I shall take a few minutes to try to deal with one question. It sounds quite logical, yet noble Lords will all be aware that some have objected to the Bill, and I think that I should try to address some of the objections from serious people. The Bill has touched a nerve. For some, it has been painful. Some doctors have asked, “Is this Bill saying that we are not innovating?”. Some medical negligence lawyers have asked, “Is this Bill saying that we are responsible for the fact that there is no cure for cancer?”. No, my Lords, this Bill is not a criticism of anyone—by anybody. Nobody is doing anything wrong. Everyone is doing their best, by their own best lights, to serve the community. However, the fact remains that there is no cure for cancer.
Your Lordships may have heard it said that the Bill is unnecessary because, as I said, innovation is taking place now. Of course it is, and I take my hat off to those who are working flat out to achieve the innovations that have taken place, but to be in favour of innovation is not to say that there is no innovation; it is just saying that we need more of it. On that, we can all agree.
Your Lordships may have heard it said that the Bill is unnecessary because there is no fear of litigation. The Medical Defence Union has protested strongly that no doctor has ever asked it for advice about litigation risk. Yet the MDU is an insurance company for doctors. It receives millions of pounds of insurance premiums from doctors to insure them against—yes—medical negligence claims. But at the same time it says that doctors have no fear of such claims. That does not make much sense, does it? Perhaps the MDU runs the risk of appearing too clever by half.
In the real world, the culture of medical litigation grows and grows, and I cannot spare your Lordships the statistics. Last year, we, the taxpayer, paid out £1.2 billion to meet negligence claims against the NHS. That figure has doubled in five years. According to the Treasury, we the people have a further liability for a staggering £24 billion—another sum that has doubled in five years. Are we to assume that doctors have never heard of all this litigation? Fortunately, the Government are not so deaf. The NHS Litigation Authority has been formed to deal with this tidal wave of litigation. It has, according to its report,
“an extensive risk management programme ... Most healthcare organisations are regularly assessed against the NHSLA Risk Management Standards”.
Are we to believe that no hospital trust has ever heard of these legal risk management assessments? Of course not, particularly as only this week the Secretary of State has asked Sir Robert Francis to review what Sir Robert calls the “culture of fear” in the NHS. That, of course, is why Professor Sir Michael Rawlins, president of the Royal Society of Medicine, says, flat out, that,
“departing from what is regarded as ‘established practice’ or ‘the standard of care’ leaves a doctor open to legal action for negligence”.
The noble and learned Lord the former Lord Chief Justice, who I am pleased to see in his place and who will speak later, agrees. He said:
“At the moment, the doctor’s hands are tied—by concerns about professional reputation and potential negligence claims. That needs to change”.
Some have still objected that if more innovation is needed, the right place for it to be is in clinical trials. Sir Austin Bradford Hill, the forefather of the RCT—the randomised control trial—writes:
“Any belief that the control trial is the only way”—
to study therapeutic efficacy—
“would mean not only the pendulum had swung too far but that it had come right off its hook”.
This is why the Regius Professor of Medicine at Oxford, Professor Sir John Bell, said:
“There will be no cure for cancer until real doctors with real patients in real hospitals can attempt an innovation”.
The Secretary of State for Health said:
“We must create a climate where clinical pioneers have the freedom to make breakthroughs in treatment”.
The Prime Minister said that his vision of the NHS is:
“Every clinician a researcher, every willing patient a research patient”.
Can we safely put aside the objection that this Bill is unnecessary? The objection, however, that we must consider most seriously is that in its attempt to open the door to more innovation the Bill opens the door to quacks, crooks, cowboys and charlatans. No one wants that and so I greatly welcome the Secretary of State’s invitation to Sir Bruce Keogh to consider the oversight mechanism in the Bill. I am greatly encouraged by his thoughts. My noble friend will say more about that later, I am sure.
As well as that, there has been another important new result from the consultation which I should like to announce to your Lordships. Oxford University has come forward to say that it will maintain a public register of innovations that take place under the Bill. This Oxford initiative achieves two aims simultaneously: to advance scientific progress through the dissemination of knowledge to the global medical community; and full public disclosure and transparency to deter recklessness. Sunlight is the best disinfectant.
The Bill has exposed a fault line in the medical legal profession. Some say the law does not block innovation; others say it does. Some say there is no fear of litigation; others say there is. Some say they can innovate now; others say they cannot. We have here proof of one thing beyond doubt. After all the words, blogs, letters, interviews, tweets and articles that have been written about the Medical Innovation Bill, there is one definite, irrefutable conclusion. As the noble Lord, Lord Kakkar, says:
“There is an ambiguity in the way that the current law may be interpreted”—
and, therefore, uncertainty about what constitutes a safe path to lawful innovation. A lack of clarity demands a clarification.
Cancer is the number one cause of the untimely death of British citizens. Who among us can accept the counsel of patience and delay? Scientists want this Bill, the Prime Minister wants this Bill, the Secretary of State wants this Bill—and, last but not least, patients in their thousands want this Bill. Unless the phrase “putting patients first” is a mere platitude, let us listen to them. They ask a simple, despairing question: “Can anything more be done? Is there anything else we can do?”. They have tried every form of prayer to beat cancer. The Almighty cannot do this job for us. He wants us to do it for ourselves. With your Lordships’ help, that is what we will do. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, I feel that the noble Lord, Lord Saatchi, has the very best intentions behind his Bill and I congratulate him on his determination.
I have been in the position a few times when people I loved were dying too early. In such situations, if there is hope with a new medicine or procedure and if the patient wants to try it, as long as it does not cause suffering I am in favour of innovation. I was inspired by a remarkable person I met, Les Halpin, who had motor neurone disease. With only one drug for that deplorable condition, he was a leader in encouraging innovation and to speed up the development of new drugs to help combat conditions such as motor neurone disease.
With the growing realisation of infections becoming resistant to drugs, research and innovation are vital. There is no doubt that when people work together across the world, improvements are made. There have been important advancements with HIV and AIDS, but there is a need for a vaccine and more innovation. With so many people breaking their backs and necks and becoming paralysed, there is a need for innovation to find a way of joining and regenerating the spinal cord. I declare an interest in this.
Legislation sometimes does not do what it is intended to do. My queries are on behalf of patients. I have been in communication with Action Against Medical Accidents—AvMA—and there are some concerns. The Bill will remove a layer of protection and redress for vulnerable patients who are harmed when their doctors act in a way which no other doctor would support. It would encourage unsafe and unaccountable practice by doctors and lead to further tragedies and scandals such as that of Dr Ian Paterson. It would affect all forms of medical treatment, not only in exceptional circumstances such as when all evidence-based treatment options have been exhausted.
The Bill’s provision may have no positive impact on innovation. It will have no effect on funding, research programmes, clinical governance or professional and medical product regulation. Properly considered, the law already protects a doctor against an allegation of negligence if he innovates responsibly. The Medical Defence Union has publicly stated:
“The Secretary of State for Health in a written statement introducing the Medical Innovation (no. 2) Bill stated that doctors wishing to depart from established procedures and carry out an innovative treatment may be fearful of doing so because of the possibility of a clinical negligence claim. We have seen no evidence to suggest that this is the case … Our advice is that there should be no consequences providing there are appropriate safeguards in place, the patient fully understands what is proposed and why the clinician believes it is in their best interests, and they give their fully informed consent … We are happy to reassure doctors that medical innovation should not leave them open to an increased threat of litigation”.
The Bill provides a defence: doctors will not be negligent in relation to any treatment currently regarded at common law as negligent if they take the decision to treat responsibly. While the purpose of the Bill—to promote responsible medical innovation—is laudable, the intentional effect is to deprive patients who are harmed by doctors of a right to redress, even when the doctor has acted in a way that no other doctor would support. It is the rationale behind the Bill that doctors who would currently be regarded as negligent should no longer be held liable.
AvMA is concerned that patients should be afforded protection against irresponsible or negligent doctors. Regrettably, the Bill does not provide adequate protection and could actually encourage unsafe practices, leading to further tragedies and scandals such as that involving Dr Ian Paterson, among others. AvMA is also concerned that patients who agree to treatment that goes beyond the bounds of what is considered acceptable by all responsible bodies of medical opinion are precisely those who require particular protection. The desperate patient who will try anything to be cured or to secure a short extension of their life may be the most vulnerable to exploitation.
Media coverage and statements by supporters of the Bill give the impression that it is designed specifically to open doors to innovative treatments for people with life-threatening conditions for which all evidence-based treatment options have been exhausted. AvMA says that this is not the case. Is it correct that the Bill would apply equally to any form of medical treatment where the doctor convinces the patient that it would be in their best interests to receive it? This could include, for example, cosmetic treatment. I am very keen that there should be a positive effect on innovation, but the safety of patients must be the priority. There should be no loopholes in this legislation to ensure that patients are not put at risk without their knowledge and consent.
I would like to end by saying how important the work of charities is in helping with medical innovation, one of them being Parkinson’s UK. The charity strongly supports more innovation and its adoption into clinical practice so that new and better treatments can be developed to help people with Parkinson’s disease. Any change to the current legislative framework must be driven by clear evidence that the prospect of legislation is currently preventing innovation by doctors. Further clarity is needed on how the Medical Innovation Bill will give priority to informed consent and peer review in order to protect patient safety. Safeguards are needed against unintended consequences such as encouraging reckless innovation and exacerbating the postcode lottery of services.
I have two questions. What evidence is there to suggest that doctors have been discouraged from using innovative treatments for conditions such as Parkinson’s due to concerns about litigation? How many clinical negligence claims in recent years have been linked to innovative medicine? Is not one of the problems the fact that innovative medicine can be very expensive and there are problems around payment? There are many complex conditions, but there should always be honesty and transparency.
Lord Newby
My Lords, perhaps I may remind the House of what I said at the start of the debate; namely, that it is a firm convention that the House should rise at around three o’clock on sitting Fridays.
Lord Winston (Lab)
This is a Bill of colossal importance and to truncate speeches to six minutes, even though it is a Friday, seems to be highly undesirable. It needs to be discussed because there are many implications behind this piece of possible legislation.
Lord Newby
My Lords, I am not in any sense trying to curtail the debate. I am reminding noble Lords of the conventions of the House. My experience of listening to debates is that those in which the speeches last for six minutes can be among the best we have.
Lord Mackay of Clashfern (Con)
My Lords, I shall attempt to stick to the advisory limit. This is an extremely important Bill which, as has been said, has generated a lot of opposition and very many pages of debate. I am greatly obliged to Leigh Day solicitors for presenting me with a large file on the Bill. Of course, the flow of such material has continued up to the last minute. I want briefly to summarise the Bill as I see it because I believe that it provides the best possible protection in relation to medical innovation that could be devised. You just have to look at the Bill in this way.
Clause 1(4) states:
“(4) Nothing in this section—
(a) permits a doctor to administer treatment for the purposes of research or for any purpose other than the best interests of the patient”.
This is the centre of the Bill. If you innovate, you will depart from the existing practice. The law as I understand it in respect of medical and other professional people is that, in treating their clients or patients, they have to use the reasonable care that is expected of a person of that skill. That is the fundamental rule. Other ancillaries have been developed such as the Bolam principle, which says that if there is a body of medical opinion that is responsible and relevant, that is evidence that the doctor in question has in fact exercised reasonable care. The question is this: if there is no such body, how do you exercise reasonable care?
The Bill sets out a procedure by which that can be done. It analyses the process of coming to a decision that reasonable care has been taken in the circumstances of an innovation. It sets out that this must be done by a process which is accountable, transparent and allows for full consideration of all the relevant matters. I personally do not find it easy to suggest an improvement to that particular formula. The Bill sets out in some detail the process which must be followed in order to achieve that overall objective. The first requirement is,
“consultation with appropriately qualified colleagues, including any relevant multi-disciplinary team”.
That implies consultation. I have read some opinions which suggest that it could be ignored without any consequences whatever. You can ask someone’s opinion, and if it goes against what you want to do, you just ignore it and carry on. That is not my understanding of the term “consultation” as it is used in the law. Consultation means that you have regard to the opinion. In a case where a doctor is challenged, this will have to be set out. If, for example, Dr A says, “This is very dangerous”, the defendant doctor will have to give a good reason why he thinks that that statement is not correct. That is the first stage, and of course consultation would include looking at the relevant literature on the subject.
The second requirement is,
“notification in advance to the doctor’s responsible officer”,
which is in accordance with the statutory provisions covering medical responsibility. The third requirement is,
“consideration of any opinions or requests expressed by or on behalf of the patient”.
That would include the patient’s consent, which is absolutely essential for any treatment by a doctor. It must be full consent that is given after a full explanation of the risks involved in the treatment. The fourth requirement is,
“obtaining any consents required by law”,
which, as I say, includes the consent of the patient himself or herself. The last requirement is,
“consideration of all matters that appear to the doctor to be reasonably necessary to be considered in order to reach a clinical judgment, including assessment and comparison of the actual or probable risks and consequences of different treatments”.
That is a very full assessment. As I say, I have received quite a body of literature but I have not seen any that actually formulates the way to achieve a result of reasonable care in the situation of an innovation. How do you do it if there is no body of opinion already in favour of it? How do you justify your decision as taking reasonable care? In my judgment, most of the literature that has come in from a great number of bodies, including all the professional bodies, is based on a failure to give full effect to the provisions of the Bill.
I declare an interest as an honorary fellow of three of the medical royal colleges. I am also a member of Cancer Research UK, and I join my noble friend in paying tribute to the work of the charities, particularly Cancer Research UK in its research function. I also had some experience of this area of the law when I was in private practice but, of course, as your Lordships will understand, that is rather a long time ago. I support the Bill heartily and I have seen very little in the way of suggested improvements to this line of thought.
Baroness Bakewell (Lab)
My Lords, I give my qualified support to the Bill, based on my experience of 10 series of a BBC programme called “Inside the Ethics Committee”. I have worked on programmes about medical ethics for many years and I remember when ethics committees were introduced into hospitals to resolve the issues facing doctors making difficult decisions.
From those programmes I have learnt certain things. One is that there is incredible responsibility in the medical profession when it comes to making difficult decisions. Great care is taken. Doctors are devoted to solving the problems presented by their patients. That is what they live for and they want to be successful at what they do. They often take great care and consider the nuanced arguments on both sides, seeking to balance benefit against risk. There is no such thing as absolutely safe innovation. It carries risk and it is the responsibility of doctors and their advisers to assess those risks.
I have also discovered that Dr Shipman casts a long shadow. I have run into situations in which medical men have wished to take certain steps but their healthcare supporters have been resistant to change for fear of litigation. Clearly, an issue exists throughout the caring professions about the nature, extent and possibility of litigation. We need more facts, which is what happens in ethics committees, and we need many viewpoints. The number of ethics committees has mushroomed because doctors take the law that exists very seriously and follow it, in my observation, with great scrupulousness.
The noble Lord, Lord Saatchi, mentioned the increase in litigation. There are many explanations for that. We live in quite a greedy society, litigious about many things. The opportunity to make some money out of something that happens in your life is regarded as quite commonplace and acceptable. But with more medical procedures and an increasing population, and new possibilities coming on stream all the time, I do not think that the rise in litigation is something to be feared. Litigation acts in the defence of patients. We want patients to be exposed to innovation that is safe. We want them to be protected against innovation that is risky. The need to protect patients against malpractice, carelessness, mistakes or neglect has to be paramount.
In his comments on the Bill, Sir Robert Francis cited what he saw as real obstacles to innovation. The House—and the medical profession—should note what they are: overzealous bureaucracy, scarce resources, ethical reservations and the length of decision-making processes. It seems appropriate to draw attention to those so that when we discuss the nature of innovation all those considerations get some support.
The whole intention of the medical profession, its flagship slogan, is: “First, do no harm”. I reject the claim made by the Bill’s critics that it will weaken the defence of the patients. I see it as adding to the strength of existing legislation and I offer it my support.
Lord Cormack (Con)
My Lords, I have rarely experienced the House in a more sombre mood. The reason for that was briefly illustrated by the short intervention by the noble Lord, Lord Winston, from whom we will hear later. My noble friend Lord Saatchi spoke with a quiet, controlled passion. I admire his persistence and understand his concerns. It was also good that the debate became a debate with the speech of the noble Baroness, Lady Masham, because she put questions that not only deserve to be answered but must be answered.
I have to say that when my noble friend Lord Saatchi first introduced the Bill, I had certain strong misgivings. If those misgivings are to be encapsulated in a single word, it is the word to which he referred: quackery. We all know that there are those who, through the centuries, have peddled remedies that could benefit only themselves and not the people they sought to benefit. Even to this day, if there is any Member of your Lordships’ House who is not in receipt at least two or three times a week of some coloured leaflet promising the cure to all known and some unknown ills, I congratulate them. My wastepaper basket frequently overflows with such things.
My initial misgivings have to a large degree been answered by the knowledge that so eminent a legal luminary as my noble and learned friend Lord Mackay of Clashfern feels that the Bill is both desirable and necessary, and by the fact that noble Lords eminent in the medical profession have given it their support. My noble friend Lord Ribeiro will speak later in the debate, but I had the benefit of a conversation a week or so ago with the noble Lords, Lord Kakkar and Lord Patel, for both of whom I have a profound regard and respect, who told me that they felt the Bill was a small but good advance.
Of course, we must not fall into the danger of suggesting that we have not had tremendous innovation in medicine over the past few decades. It is exactly 44 years since I took my seat in another place. When I did so, not a single one of my constituents had an artificial knee or an artificial hip. My agent in the early 1980s, a young man in apparently vigorous health, collapsed and was one of the first recipients of a heart transplant. Medicine has advanced in a truly remarkable way. By the time I stepped down as the Member of Parliament for South Staffordshire, it was impossible to attend a gathering of those over 60 that was not also a “bionic” gathering: knees and hips all seemed to be artificial. I am glad to say that mine are not yet.
We have to look at it against that background but we also have to accept that there have been considerable advances in the treatment of cancers. There cannot be anyone in this House who has not been closely associated with that dread disease in one or other of its forms. I remember an aunt of mine in the late 1960s dying in considerable agony from cancer at a very young age. More recently, my wife’s father died of cancer, although, by then, the treatments were such that the pain was relieved. My noble friend Lord Saatchi—I do not wish to personalise this—has had a graphic and tragic personal experience which has motivated him in a way that we can all only admire. It is right that there should be no deterrent to proper innovation. The only question is: will this Bill create some of the problems which were forecast by the noble Baroness, or will it contain the safeguards that will prevent them?
I come down on the latter side, as did the noble Baroness, Lady Bakewell. What we are being offered today is a way forward that can do no harm to anyone and could conceivably be of real benefit to a number of people. If this Bill was to benefit only a handful of people, it would be worth while and it would be right to support it.
If ever a Bill cried out for pre-legislative scrutiny, it is this one. It is clearly not happening with the Bill at the moment. If the Bill goes on to the statute book along the lines advocated by my noble friend Lord Saatchi, that is well and good, but if he has to bring it back in a new Parliament, it would be right for the Government to take it over and for there to be pre-legislative scrutiny. I do not say that to deflate the ambitions of my noble friend, but I say to him that many parliamentary campaigns have lasted more than the three years that he has been involved with this one. He is a man who has the tenacity, the commitment and the determination to see this Bill through, and I truly hope that he will do so.
Baroness O'Neill of Bengarve (CB)
My Lords, I declare an interest in that I am on the board of the Medical Research Council and chair its ethics, regulation and public involvement committee. Nothing that I say is said in the name of the Medical Research Council, but I believe that it will be compatible with the views that it holds.
I have great sympathy with the purpose of the Bill and agree that we need to ensure that, where permitted, those providing innovative treatments under safeguards should be required to complete and to make available the relevant data for the benefit of others with like conditions. I was therefore very encouraged to hear about the initiative for the registration of innovations, which may make a difference. That benefit may be knowledge of cure or improvement, but, equally, it may be knowledge that protects against treatment that would either exacerbate or not benefit—benefits go two ways in this.
However, I want briefly to point to some wider issues that lie in the background of this discussion. The days of the blockbuster drug may be drawing to a close. We are seeing the emergence of many more narrowly targeted drugs that meet the needs of smaller numbers of patients. This is the promise, but also the problem, of stratified medicine. It raises problems for the classical model of the randomised controlled trial. Such trials are expensive and take a long time. Where a drug or innovation may benefit quite small patient populations, it may be difficult to recruit a cohort of trial participants with the relevant condition. Where a market is likely to remain small, it may not be feasible for any pharma company to take the financial risk. We therefore have strong reasons to think about possible ways of making legitimate clinical trials more feasible and more flexible, while protecting patients and always acting within their consent.
I want to point to one particular sort of research for which we need to make room, and that is participant-led research. In participant-led research, those who suffer from a condition agree to make their data available for analysis. That analysis may reveal that some form of treatment benefits or harms. It is marvellously cheap as a way of doing it. As an example, I would cite the ALS lithium study conducted by users of the online platform, PatientsLikeMe. It was initiated by two advanced-stage patients from Brazil and the US who were users of the platform and who died before the conclusion of the study. A group of 149 ALS patients on the platform took lithium in order to test the findings of a small earlier study into its effects on disease progression and symptom alleviation. The PatientsLikeMe ALS study was completed over a period of eight months—note how short that was—and was published in Nature Biotechnology. It found that lithium had no effect, which was subsequently confirmed by standard clinical trials, but the innovative approach to establishing a result was much faster.
Participant-led research faces some difficulties. It may not be eligible for ethical review, not because one cannot consider the ethics of the matter but because there is, believe it or not, no principal investigator—so how does one do the ethics review? It may not be eligible for publication in medical journals; for example, because it has not been subject to ethical review. I do not think that such research should be subjected to less rigorous ethical or scientific review than other research, but nor do I think that it should be obstructed because it does not conform to the precise assumptions of the classical randomised control trial. Is the Department of Health considering a wider review of the fitness-for-purpose of present ways of regulating clinical trials so that they might be extended to cover a greater range of innovative research and innovation proposals?
Lord Colwyn (Con)
My Lords, I should like to congratulate my noble friend Lord Saatchi on the many hours of research that he must have done to introduce this Bill.
I am not sure that the proposed legislation is necessary. Any need for additional support for doctors should be achieved through professional guidance, not rigid statute. I declare a one-time interest as chairman of the dental section of the Medical Protection Society, as a member of that council and as a long-term supporter of the integration of allopathic medicine with holistic and natural medicine. I am also president of the All- Party Group for Integrated Healthcare.
When my noble friend introduced his Bill on the 5 June, I assumed that it would be yet another complaint against those practitioners of complementary medicine who are not all registered and regulated. I am currently trying to persuade the Department of Health to introduce statutory regulation and registration for practitioners of herbal medicine, but very little progress is being made.
The Bill is designed to codify existing best practice in relation to decisions by medical practitioners to depart from standard practice and to administer innovative treatment, but I believe that existing legislation is sufficient and adequate and that the Bill is not necessary.
I have always encouraged innovation. I asked the Library whether it would look at some of the speeches that I made in the 1970s and 1980s which referred to innovation. It came up with a debate on heart disease on 25 July 1984, in which I said that,
“I am of the opinion that the deposition of cholesterol in our artery walls, and, for example, the abnormal cellular division that causes cancer, are all normal occurrences throughout life, and that it is the action of our immune system”—
I then listed some of the vital organs—
“which make the necessary day-to-day repairs. However, these repair systems are not perfect, and the rate of repair declines relative to the rate of damage”.—[Official Report, 25/7/84; col. 371.]
Recently, there have been references in the media that up to half of cancers could be fought using the body’s own immune system and that drugs to help patients heal themselves will be the next innovative breakthrough. Pharmaceutical companies are rushing to get therapies into the clinic as regulators agree to help fast-track approval after spectacular early trials. Doctors are beginning to understand that the treatment labelled “immunotherapy” is finally becoming a reality.
The issue of freedom of choice in medicine is paramount. There is no justification for assuming that practitioners of complementary medicine should be allowed to treat patients without undergoing the same high standards of training if they want the responsibility and authority to practise their medicine. I like an openness to other models of health and illness and a willingness to experiment. A number of holistically inclined doctors will try out botanical drugs, work in association with osteopaths, chiropractors and other fringe therapists, study such techniques as acupuncture and homeopathy, and consider the possibility that psychic healing is a reality worth documenting. I am pleased to meet doctors who concentrate on health and its maintenance rather than on disease and its treatment. To see them emphasise nutrition and discourage medication is a remarkable and welcome change.
Much of the publicity surrounding the Bill has focused on finding a cure for cancer but the amended Bill applies to any medical condition, thus providing an opportunity to provide unorthodox treatment for all sorts of common illnesses. Current law allows doctors acting responsibly to innovate. The Bill recognises the value of current law as it purports the current Bolam tests for standards of care as well as the current law on consent. The Bill seems to do the exact opposite. In a climate post Mid-Staffordshire, where hundreds of patients died from negligent care and with the cases against Mr Ian Paterson for undertaking many unnecessary operations, do we really want to diminish patients’ rights to redress? Thus, a doctor acting responsibly, with the support of a reasonable body of peers and the informed consent of their patient, would not be guilty of negligence under the current law. However, the Bill would allow that a doctor may no longer be negligent even when acting without the support of a reasonable body of doctors.
I have received Department of Health consultation responses from medical organisations, patients’ bodies and charities, all saying, that there is no evidence that doctors do not innovate because of the fear of litigation. I fear the amended Bill will increase litigation, as the lack of clarity, contradiction and uncertainty of terms, and the fact that there are no definitions of key words, will require interpretation by judges in court and create an avalanche of satellite litigation. Perversely the amended Bill may actually discourage innovation. The fact that key words—for example, “innovation”—are not defined will confuse doctors, who will be wary of any innovation because of concerns about what they are allowed to do. Exposing patients to innovative treatments is likely to involve a greater range of ethical and legal issues than standard treatments. Progress in cancer treatment comes about by carefully controlled studies and trials, where patients’ rights and ethics are protected.
The amended Bill does nothing to assist innovation. There is nothing about the regulation of doctors by the GMC and others, the lack of funding, the regulation of research, transparency or the sharing of information by pharmaceutical companies—all key to this issue. Surely there are better ways of promoting medical innovation than by precluding patients from seeking redress when harmed by doctors whose treatment is not supported by any responsible body of their profession. I support giving the Bill a Second Reading to allow careful scrutiny by a Committee of this House. I agree with my noble friend Lord Cormack that pre-legislative scrutiny would have been ideal.
Lord Turnberg (Lab)
My Lords, it is absolutely essential that we strive as hard as we can to find new cures and make them available as rapidly as possible. The principle behind this Bill is entirely in accord with that deeply felt need. I admire and respect the noble Lord, Lord Saatchi, for bringing the Bill forward in his persuasive and passionate speech. His motives are impeccable and he provided us with a valuable opportunity to debate this difficult issue.
Why has such strong opposition to the Bill been expressed by some significant bodies and respected individuals who cannot be easily dismissed? What does the General Medical Council have against it? We cannot really discard its fear of a rise in the number of cases of reckless and damaging practice. What do the Academy of Medical Sciences, the Wellcome Trust and Cancer Research UK have against it? CRUK says that the Bill is unnecessary because it can find no evidence that the doctors it supports are put off by a fear of litigation. What do the Patients Association and the charity Action against Medical Accidents have a problem with? Again, it is uncertainty about opening up patients to potentially damaging practices. Why is Sir Robert Francis still anxious about the Bill before us? A very respected medical litigation lawyer, he remains worried about the wording and safeguards in the Bill, and suggests that in any case it is unnecessary. These are significant anxieties from responsible people. At the very least they give us reason to be cautious about how we view the current Bill.
I hope your Lordships will forgive me if I spend a moment discussing the barriers to innovative practice. I fear that there are many. First, delays are imposed by an overly bureaucratic regulatory environment. The myriad regulatory bodies pose a major hurdle and there is much to do there. Then there are the funding issues. We still need much more money for research. There is the issue of affordability by hospital trusts and CCGs. Too often they find it difficult to provide the resources for very expensive treatments, even with the Cancer Drugs Fund, and because of that doctors are prevented from prescribing what they think their patients need.
Of course, we also have the natural conservatism of some doctors who seem unwilling to try anything new. However, the reasons for that seem more to do with a reluctance to try something of which they have had little experience rather than a fear of litigation. There is certainly need for guidance on good innovative practice, as described in the Association of Medical Research Charities publication, Our Vision for Research in the NHS. I declare my employment by the AMRC as a scientific adviser.
There are many targets at which we should aim if we are to improve access to novel treatments. Of course, the Bill is not designed to influence any of those. It is designed specifically to try to remove a fear of litigation by doctors wishing to use novel treatments. However that does not appear to be a problem in the major centres. For example, in the case of cancer treatments the Royal Marsden Hospital in London constantly tries novel treatments well before they have been approved or licensed. Oncologists working there say they do not need any help to innovate and are doing it all the time. They do the basic research, often with the involvement of the pharmaceutical industry, to produce new drugs and test them on their patients well before they have been approved and licensed.
Indeed, the whole personalised medicines agenda is one in which drugs are designed for very specific individual patients based on their own or their cancer’s genetic make-up. Clearly, the usual process of prolonged regulatory approval is inappropriate for these types of treatment. It is the case, too, that the majority of cancer patients are now in one type of clinical trial or another, where the possibility of litigation is not a barrier. Indeed, Mr Greenberg, Parliamentary Counsel, told me that the Bill is not intended for those situations.
Who is it intended for? Who might be put off trying something new on their patients for fear of litigation? Perhaps it might be an isolated doctor, outside one of the main specialist centres; a physician in private practice, general practice or a small district general hospital; or perhaps a surgeon wanting to try out a new procedure not tested elsewhere. These are the doctors we should certainly encourage to take up all the latest developments that have been shown to be effective at least somewhere or—preferably—refer patients desperate to try the latest possible treatment to a major centre that is trying them out in proper trials.
One can imagine the situation in which a new drug was being tried in America, Japan or Israel but not yet here and a doctor wanted to try it on his or her patient. Doctors can prescribe such drugs now on what is called a “named patient basis”, with all the safeguards of patient consent and a rational basis for the treatment to back them up. Certainly, better guidance on what doctors can and should do would be enormously helpful—the opportunity for debate that the Bill is giving us is invaluable in that regard—but the idea that someone working in isolation will come up with an entirely new treatment de novo seems inherently unlikely. Where will it have come from? What underlying research will have been done? What toxicity studies and tests will have been done to make it a reasonable option? Such innovation is far too risky.
Forgive me for going on for so long, but I wanted to explain why I have some difficulty with the Bill as it stands. Those working at the cutting edge of research and application of new treatments say that they do not need it; they have no fear of litigation. Those not working in the major specialised centres need better guidance, not a weakening of the law that might open opportunities for them to be more reckless than they are now.
I have read with interest and, I have to say, some confusion the legal opinions expressed by lawyers on both sides on the wording of the Bill. They have certainly made me realise why I am not a lawyer. I have also listened carefully to the wise words of the noble and learned Lord, Lord Mackay, but I also recognise that one has to be very cautious about accepting a Bill where there is room for disagreement among lawyers. Although the noble Lord, Lord Saatchi, for whom I have particular regard, has given us an extremely valuable opportunity to open up the whole subject of innovative practice—we certainly need that—and it may be possible to amend the Bill to make it more acceptable, we will have to look at that very carefully in this House. Meanwhile, I am sorry to say that I remain to be convinced that the Bill is the answer to the problem it seeks to solve.
Baroness Gardner of Parkes (Con)
My Lords, I rise to support the Bill because I am convinced that it offers hope, and I think that that is one of the most important things in life. Many years ago, when I was on the Greater London Council, our Chief Whip, a very nice woman, was in the Royal Marsden and in a terminal condition. She said to me, “It has been marvellous to have my colleagues come in, except for that one”—he happened to be a doctor—“who came in and said, ‘Oh well, that’s it, Billie, you’re finished and on your way’”. She said, “That was the one thing I did not want to hear. I wanted hope and the feeling that there was some hope”.
I had not remembered that until I met Les Halpin, of whom I am sure many noble Lords have heard. In 2011 he was diagnosed with motor neurone disease. The Daily Mail, which I do not often quote, described him as a maths genius confined to bed—this was towards the end—with a new aim: becoming a guinea pig for the experimental drugs which could save his life. That is the very important thing. My godson in Australia died not long ago from motor neurone disease, and it is a horrible condition. Les would certainly have been in a position to give informed consent. Various letters of opposition that we have received say that informed consent will be impossible to get. He was quite clear. When I first met him, he was quite fit, and he explained in great detail that he wanted to have these new drugs tried and was prepared to be self-funding at that stage because he thought it might benefit others.
It is quite by coincidence that I have held this view for some time; it is not just because I happened to be sitting next to my noble friend Lord Saatchi on the day that we had the First Reading of the Bill. At the time, I had a Question along the same lines. I met Les when he was quite fit, and then just a year, or a little more, later he was totally tied to bed and unable to do anything. The one thing that he had been deprived of was the hope that something might have helped him. It is more important than that; it is both hope and research, a double value. If it helps the person who has the innovative treatment, that is good in itself—but if, on the other hand, it helps people who follow and is just one element in a chain of tests for something, that will be hugely valuable to others. It is surprising how many people who are very ill would like to be able to help those who follow.
Les set up a charity called Empower: Access to Medicine. I understand that an application has been made to the Charities Commission for registration, but that process takes a fair time. So although he did not get acceptance for the type of treatment he wanted during his lifetime, his work is continuing, and today’s Bill is important and, I believe, very much in the interests of patients. I have received many briefing papers from many groups, most of which seemed pretty self-interested or self-protective. The point has been made how valuable it is for practitioners to have a means of protection, but I was reassured completely by listening to my noble and learned friend Lord Mackay of Clashfern that the protections are there in the Bill and that reasonable treatment is what we are talking about. The noble Baroness, Lady Bakewell, made other points. I rarely disagree with my noble friend Lady Masham, but on this occasion I do disagree with her. I understand her views, but I think that the Bill is more important and I do not think that she will find that there is a lack of the necessary protection there. I strongly support the Bill.
Lord Winston
My Lords, when I first read the Bill I was deeply impressed and thought how important it was. I congratulate the noble Lord, Lord Saatchi on introducing it. It is a hugely welcome discussion; I am very pleased that we are having it today, albeit in a truncated fashion. When we come to Committee, we will need to tease out a number of issues that the Bill raises. As I think more and more about the Bill, I have increasing misgivings, which I must explain to the noble Lord, Lord Saatchi, whom I deeply respect; I think he has acted with huge dignity and great compassion throughout his speeches on this issue, including on this occasion.
I am not against innovation in any way. In fact, innovation—if I may dare to be so pompous—has really been my entire life. For 40 years in surgery, I have innovated. I produced the finest microsurgical needles, which were not made by manufacturers—we made them on the bench ourselves because we needed them. I designed my own instruments, which subsequently became a general standard throughout the world and were finally designed by a German company. They were not standard in Britain. I swung a microscope over the abdomen of a patient for the first time anywhere in the world—something which most people thought was actually risky because it might introduce infection. It transformed pelvic surgery. I have to say that when laparoscopy came along, I think I was probably the first person to operate down a laparoscope, well before any general surgeon did so. Indeed, it was only with subsequent experience that we realised that laparoscopic surgery—fortunately, not in my hands as a gynaecologist but in the hands of general surgeons—actually caused a number of very serious accidents and even a few deaths. Of course, it took experience to find out that that innovation actually had all sorts of complications which might not have been recognised by any committee assessing the situation to start with.
Also, in the field of in vitro fertilisation, we have clearly been innovative in this country. We introduced hormone treatments, which could not be assessed by a randomised controlled trial initially—one of the points that Onora, the noble Baroness, Lady O’Neill, made was that there are many ways of assessing research. Programmed dosing of drugs in IVF, which transformed that treatment and made it possible to perform retrievals without laparoscopy at all, without a surgical procedure, were started in my unit and are now used world wide. There is also the example of ultrasound replacement of the embryo.
One trial that we did that was not truly randomised was to give patients alcohol at the time of the embryo transfer, because we thought that alcohol might calm the uterus down and therefore stop it contracting. Of course, that was not something you could really submit to an ethics committee, but it is the sort of thing that a woman might take during treatment. We found that white Loire wine had no proven benefit, but a good red from Pauillac was really quite effective.
Subsequently, genetic diagnosis, which was important in how legislation was formed in this House, could not easily be assessed, except by an ethics committee. There was a whole range of innovative procedures there that did not need this Bill. Neither did sperm microinjection nor endometrial abrasion. We now find, for example, that if you make a deliberate injury in the lining of the uterus before in vitro fertilisation, you can improve the success rate. That is completely counterintuitive and might be quite difficult to get through a committee without very difficult scrutiny. We also introduced what is called sham transfer, which prevented a lot of patients having unnecessary embryo transfers.
I feel a little like the noble Earl, Lord Howe, who is sitting on the Front Bench. I do not think that he was in his place during Prayers this morning, when we heard from the right reverend Prelate the Bishop of Birmingham:
“I will lift up mine eyes unto the hills, from whence cometh my help”.
I suspect that he feels that quite often when he is besieged by doctors protesting against legislation or improvements in governance. However, this issue really is causing increasing concern among many practitioners, as the noble Lord, Lord Turnberg, said. It is not quite as simple as was originally thought and we need to be very well aware of that, because it has the possibility of untold consequences. I want to explain what I think those are in just one minute or so.
We can see very well that in the practice of in vitro fertilisation now being carried on, all the governance in the world, including a regulatory framework, does not prevent innovative treatments which risk damaging patients. Let me give just two examples. One of them is embryo biopsy, which is substantially to try to understand which embryo might be better for transfer. What we actually know now, after various meta-analyses of a number of randomised trials, is that this procedure not only decreases the chance of a pregnancy by about 50% but is ineffective in understanding whether an embryo is truly suitable for transfer. Moreover, animal experiments now being done are showing that some mice show changes in their central nervous system, which lead to cognitive impairment when they are adults. Some of them are showing demyelination of nerve fibres in the brain. This potential innovation is one example of in vitro fertilisation—but not the only one—that might cause untold circumstances without all sorts of issues which innovation might risk. Not the least of those is blastocyst transfer, which we know causes changes in gene expression in humans in some cases.
Innovation undoubtedly has risks and we really have to understand that. If this Bill goes through to Committee, as I hope it will, we will clearly need to look at it very carefully to make sure that a number of amendments are made to it. I notice that the noble Baroness, Lady Bakewell, is now not in her place. Sadly, and in spite of what the noble Baroness said, litigation might increase as a result of the Bill as patients might decide to litigate because a doctor has not tried innovation in an unusual circumstance. Whether we like it or not, the problem really is that litigation under any circumstances is extraordinarily damaging to all parties concerned, even when a patient wins the case. It should be avoided not least because of that psychological damage, leaving aside the cost to the national purse.
The massive correspondence which I have received is very concerning. I conclude with the words of Michael Baum, one of the leading innovative surgeons in cancer in this country, whose contribution to breast cancer is second to none. He has said to me that in his view, “Their Lordships are walking over a precipice if they pass this Bill”. We have to listen to that very carefully. Of course I really want to demonstrate my absolute sympathy for what the noble Lord, Lord Saatchi, has said. I congratulate him on bringing forward the Bill but we need to consider it very carefully on the Floor of the House in due course.
Lord Ribeiro (Con)
My Lords, I am pleased to follow the noble Lord, Lord Winston, who is an acknowledged innovator outwith the accepted norm. I welcome the introduction of this Bill, which has generated much interest and debate following the recent NHS consultation—based, I might add, on an earlier iteration of the Bill. The Bill we are discussing today is simple and easy to implement, if confined to hospital practice involving surgery and interventional procedures. The terms “treatments” in Clause 1(3)(e) and “treatment” in Clause 1(4)(b) open this up to all treatments provided, whether in the regulated area of the NHS and private hospitals or the unregulated area of the cosmetic industry, where unqualified practitioners may undertake Botox treatments for cosmetic purposes.
During the early stages of the Bill I met my noble friend Lord Saatchi with colleagues from the Pelican Cancer Foundation, a cancer charity, to explain some of the barriers to innovation that we had experienced. These have been mirrored by Sir Robert Francis and were identified earlier by the noble Baroness, Lady Bakewell: bureaucracy, scarcity of resources and ethical reservations. We stressed the importance of keeping patients at the centre of the decision-making process and providing them with as much information as possible on, for example, the number of patients who had previously received the procedure or treatment; the percentage cure rate of the treatment; the likely impact of side effects and an obligation to explain the impact of those side effects to the patients. These are all encapsulated in Clause 1(3)(c) and (e). The Medical Defence Union and others feel that Clause 1(3)(e) is unnecessary, given the current use of Clause 1(3)(d), which deals with informed consent.
Informed consent is even more important when dealing with new and untried techniques. The practice of medicine is regulated through numerous guidelines, guidance, protocols and pathways which must be followed to ensure the safe delivery of care. Many of these did not exist when I began my surgical career and I was free to innovate in the best interests of my patients, usually after joint consultation and agreement. This is not the case for surgeons today. The advent of laparoscopic cholecystectomy, or keyhole removal of the gall bladder, is a case in point. In 1989, a French gynaecologist removed the gall bladder of a patient while carrying out a routine gynaecological operation. As we heard earlier, gynaecologists have been rummaging around in the stomach with their little telescopes for an awfully long time. This ushered in a new era of surgery, which challenged the gold standard of open surgery for gallstones that had held for 100 years.
However, the freedom to undertake such operations without any oversight came at a price to some of the patients involved, who developed unnecessary complications. At the time, I set up a national register to collect data on laparoscopic cholecystectomy, from which we published reports of complications to warn colleagues of the hazards of these new procedures. It is an innovation which would be impossible to introduce today and many of us would be considered mavericks for carrying it out.
The Royal College of Surgeons and the Government established a minimal access training unit to teach the new procedure and, in 1996, introduced a safety and efficacy register for new interventional procedures, called SERNIP. The register accumulated a list of new procedures and allocated each to a category, signifying its perceived degree of safety and efficacy, but it had no legal power and so its effects were limited. It was taken up by NICE in 2002 and remains within its remit. If the Bill is adopted, it would be essential to have a national register with legal powers to log and follow up with patients. I am delighted to hear that Oxford University has agreed to undertake this.
One way to ensure the Bill’s stated aim—that it,
“allows the test of whether innovation is negligent to be applied at the time when the doctor is deciding to innovate”,—
is to provide access to expert independent advice, particularly when the multidisciplinary team or the body of one’s peers fails to sanction the procedure being proposed. The invited review mechanism deployed by the Royal College of Surgeons to assess failing surgical departments in the NHS at the request of a trust board could act as a blueprint for such independent advice, providing two experts from relevant specialties to review the case for innovation, one from the Royal College and the other from the specialty association or society. This is no different from requesting a second opinion—something we all find valuable and which reassures patients that a body of opinion agrees with your proposals for treatment. The situation becomes more complicated, however, when the practitioner does not have a responsible officer, an MDT, a clinical director, a medical director or a chief executive to consult and, as in the case of the NHS, to approve the introduction of a new technique or procedure.
The overarching umbrella of protection—some may say “bureaucracy”—is not available to non-NHS practitioners, some of whom are not medically qualified but undertake cosmetic procedures in the private sector. Some, for financial gain, may work out of their own clinics or hospitals. How can we ensure that the treatment they provide is covered by the Bill? Will they also be free to innovate? The answer is yes, because they do already. Some end up creating problems and facing negligence charges, but they would not enjoy the protection that the Bill provides. This is something that we must look at carefully. When we talk about cancer, it is very easy to talk about innovation and freeing people from the shackles that bureaucracy provides because we all want the best for our patients, particularly when we are dealing with cancer. However, the use of the term “treatment” opens up the Bill to a wide area that will need to be covered. That is the only area that I have reservations about; otherwise, I am in support.
Baroness Emerton (CB)
My Lords, I add my thanks to the noble Lord, Lord Saatchi, for putting forward this important Bill. I add my appreciation to all those who have provided helpful and thought-provoking briefs. I also thank Peers who have widened the debate and discussion today. I declare an interest, being a retired nurse, a former lay member of the General Medical Council and a member of its professional conduct committee, and chairman of the Nursing and Midwifery Council.
I am very much in favour of innovation. I have had years of experience now within the health service and witnessed the many innovations that have come about. My first great impression was the introduction of the surgery and treatment for tuberculosis. However, innovation needs to be controlled.
I want to make two points, although I also thank the noble and learned Lord, Lord Mackay of Clashfern, for eruditely taking us through the safeguards this morning. First, I want to pick up on the point about the inclusion of the “multi-disciplinary team”. It must be recognised within the health service that, while doctors prescribe, diagnose and treat, other healthcare professions are often also involved. My concern is: what is the vicarious liability for the professions in terms of the organisations that they work for if we have no absolute research backing for the treatments that are taking place? This opens up an area that needs more discussion, and I ask the Minister whether there are any thoughts on the vicarious liability of the other healthcare professionals. Secondly, regarding the safeguards, I think that they have to be looked at in terms of the way in which the criteria are set and how the research is carried out.
As far as the patients are concerned, I take the point made by the noble Baroness, Lady Gardner of Parkes, about hope. Of course we all wish to see patients’ hopes met, and we must remember that we—doctors, nurses and healthcare professionals—are a compassionate and caring profession. However, we live at the moment in what has been described as a culture of fear. We need to think very carefully, if the Bill is to proceed, how that culture is to be overcome for the benefit of patients and of the professions by involving them across the multiprofessional teams in innovation. If the Bill proceeds to the next stage, and I hope that the opportunity is open to it to do so, I hope that these things can be addressed.
Lord Howard of Rising (Con)
My Lords, I congratulate my noble friend Lord Saatchi on introducing this important Bill. The Bill is about innovation, but one of its benefits would be to enable dying patients to obtain potentially life-saving treatment even if that treatment had not been fully investigated. I have been lobbied by those against the Bill with arguments varying from lengthy legal discourses to comments such as, “The medical treatment may not have the support of a responsible body of medical opinion”. My reaction to much of this has been much the same as that of the noble Baroness, Lady Gardner.
Of course it is desirable and important to have thorough investigation of innovative medical treatment, but if someone is dying they are not interested in whether a possible life-saving treatment has the support of responsible medical opinion. The patient is interested in survival; after all, the alternative is terminal. Many impressive and technical arguments have been put forward today, but where the simple point is “Experiment or die”, there is really only one option.
It is possible, as has been claimed, to innovate under the law as it exists today but, as has been pointed out, we live in a litigious society. Ambulance-chasing lawyers are lurking around every corner, searching for new opportunities. The law as it stands does not do enough for a doctor who wishes to administer an innovative treatment that may give the last chance of a cure to a dying patient; indeed, there is a bias towards no action. The Bill will help to remove doubt about a doctor’s ability to act in what he and his patient believe to be the patient’s best interest. It would be far better for a doctor’s energy and concerns to be focused on the patient’s health rather than worrying about their own position if he or she were to take innovative steps to save a patient’s life. There should not be a bias against the ability to give a potentially life-saving treatment to save a dying patient.
Lord Davies of Stamford (Lab)
My Lords, in my days in the City, there were a number, and I hope that they are no longer there at all, of fund managers and their client trustees who invested the funds of rather unsophisticated beneficiaries—I am thinking particularly of beneficiaries of small family trusts set up by some bequest or, very often, the funds of small charities, of which there are an amazing number in this country—entirely in the gilt market. Anyone who knows the first thing about finance knows that throughout the second half of the 20th century, if you invested in gilts over the long term then that was a sure-fire way of ensuring that the value of the fund would be eroded over time; indeed, after a decade or so, the erosion would be substantial. Why did they do it? Were they stupid? No. They did it because if they had invested that money in equities, there would have been a risk that they would get the timing wrong. If they had got the timing wrong when they went into equities, they could have been sued for having taken that decision. They therefore stayed in gilts because there was always a protection there; you could say that it was the practice of the market to invest, say, widows’ and orphans’ funds in the gilt market.
So I have been familiar for quite a long time with the context in which the law of tort and the system of civil justice and civil damages that we have in this country, which is designed to protect individuals, particularly vulnerable and unsophisticated ones, and indeed does so, can sometimes turn against the interests of precisely those whom it is trying to protect. It seems to me that in the area of medical negligence and malpractice the law has had exactly that perverse effect on innovation described by the noble Lord, Lord Saatchi, this morning. Therefore, in principle I am very much in favour of this essential and permissive legislation.
I shall deal briefly with the three main objections that have been made this morning. The first was made by my noble friend Lord Turnberg, whom I always listen to with great attention and respect on these matters, as I did today. Essentially, his point was that the changes, if they are required, can be achieved by guidance rather than by changes in the law. I think that in principle that is always wrong. If there is something inadequate about the law, if the law is unclear or perverse, or if there is a mismatch between the apparent meaning of statute as ordinarily interpreted and the practice of jurisprudence over the decades after it has been passed, that can be remedied only by a change in the law, and it is the responsibility of Parliament to see whether such perversities or anomalies are emerging and to deal with them. No guidance by any professional organisation is a substitute for that.
The second line of objection that we have heard this morning is that in many cases many doctors and medical units around the country feel that the present regime does not in any way inhibit the degree of innovation they think appropriate in their field. I do not think that is a logical objection to this Bill because such people can carry on. Indeed, their way of proceeding is not in any way threatened by the provisions in the Bill. That matter should be set aside.
The third objection was very powerfully made by the noble Lord, Lord Winston. Essentially, it amounted to saying that innovation can be very risky and in the case of medical innovation can lead to people’s deaths. We have to be adult and accept that, in the whole of human existence, there is always a positive relationship between risk and reward. If you take no risk, there is no reward, there is no return. If there are no risks, there will be no innovation. There must be innovation, and there must therefore be risks. If I found myself with a terminal condition, I should be very inclined indeed to say to my doctors that I would like them to take some risk because I am about to die anyway under the normal prognosis based on the standard treatments and if there is a chance of trying something else, if it does not work, at least my last act in this world would have been to have made a small contribution to the progress of medical science, which would be some consolation.
However, I would do that only if I felt the protections were adequate. This is where I want to make a suggestion for looking again at one aspect of the Bill. It is about patients’ rights. Clause 1(3)(c) requires that the process include:
“consideration of any opinions or requests expressed by or on behalf of the patient”.
The word “consideration” seems extremely weak. We have heard a very authoritative account this morning from the noble and learned Lord, Lord Mackay, who seems to be satisfied with the protections. I take his views very seriously on this, as on every occasion. I can well imagine that, taken together with paragraph (d) of that clause,
“obtaining any consents required by law”,
the consideration of any opinions expressed by the patient plus the statutory need to obtain the patient’s consent, which, of course, can be obtained only where there has been disclosure, may be considered to be an adequate protection in law. However, I can see no disadvantage and can see great advantage, if only presentationally, in reassuring patients—who, as in the example I just gave, might include me one day—that they have the clear, absolute authority to decide what will happen to them and the right to have absolute, exhaustive disclosure of the potential risks and rewards and the potential advantages and difficulties of any therapy or treatment that is being proposed. That word “consideration” could be changed so that it is absolutely clear that the patient is sovereign. There must be a legal obligation exhaustively to explain completely and in detail the reason for the proposed new treatment, its possible merits and risks and that the decision of the patient is final and sovereign. If that could be expressed by an amendment that might take place in another place—I certainly do not propose to hold up the Bill by proposing an amendment on my own—it might be very reassuring to many people who still have doubts on the merits of this extremely valuable Bill.
Lord Blencathra (Con)
My Lords, I declare a deep and personal interest which I have had for the past 16 years since I was first diagnosed with MS. I congratulate my noble friend Lord Saatchi on the way he has introduced his Bill, on the content of the Bill and on the way he has conducted himself over the past three years. It is a lesson to us all. I thank my noble and learned friend Lord Mackay of Clashfern, who has reassured us that there are adequate safeguards in the Bill and that we should not have concerns about any additional risk of doctors being sued for inappropriate or overinnovative behaviour.
The objection to the Bill from the medical profession is, in the main, that innovation happens already and the Bill is not necessary. I do not see that as in any way taking away the need for the Bill. If the Bill is not causing any slowdown in innovation, it is reasonably safe to let it through.
The objection from many in the legal profession seems to be that it will limit the chances of people being able to sue their doctors for negligence. If that is the case, that is a jolly good thing because I worry that in this country we are heading towards the American model where doctors seem to be afraid to prescribe an aspirin in case they get sued.
With all due respect to noble—and noble and learned—Lords on either side and to the medical profession, we have not heard much from the patient’s perspective this morning, and if your Lordships will forgive me, I will selfishly and arrogantly speak from the patient’s perspective.
I am lucky. I have slow-progressive MS. Those who get motor neurone disease or Parkinson’s disease are in a much worse position. Every time I see my consultant, I do not take my lawyer in tow behind me, waiting to sue him if he has given me wrong advice. Our discussion is always: what are the Americans up to? What is the breakthrough? Is it time for beta interferon? Should I change from injections of copaxone to something else? It is always about searching for that hope that there is something that will fix it one day.
I believe that we are getting close to a fix on multiple sclerosis. Certainly for relapsing and remitting, we are getting close. I think that if you were to do a study, if hypothetically the Department of Health were to say, “We have got a new drug. Could we have volunteers to try it?”, overnight you would find 10,000 people with multiple sclerosis saying, “Yes, we’ll give it a go in proper trials”. Worldwide, you might find 1 million willing to give it a go.
A breakthrough was announced in the United States in October last year by the Scripps Research Institute. It discovered that a drug called benztropine, which is currently on the market, has been on the market for many years and has been approved to deal with the side-effects of Parkinson’s, completely restored the myelin sheath in mice and rats. The institute is going on eventually to conduct some clinical trials. This drug is approved for use in this country, again for Parkinson’s patients. I think it has been approved for many years, and we know the side effects. But American GPs have greater rights to prescribe off-label than British GPs.
I believe the General Medical Council was consulted a couple of years ago about giving British doctors the right to prescribe off-label. That was strongly opposed by the pharmaceutical industry—I think we can all understand why—and the GMC dropped the proposal. American doctors can prescribe any licensed drug off-label if they feel it is in their patient’s best interest. British GPs do not have that right. So although there may be many people in this country being prescribed benztropine legally because they have Parkinson’s, the tens of thousands of us with multiple sclerosis, for whom it has been discovered the drug may work, cannot legally or properly get it. I hope that this Bill will be able to change that scenario. Ideally, the GMC should look again at its guidelines. Ideally, it should allow British doctors the same right to prescribe off-label if they think it is in their patient’s interest.
I was greatly heartened by the speech of the noble Baroness, Lady O’Neill, on participant-led research. I discovered a few years ago that the National Hospital for Neurology and Neurosurgery in London was about to conduct some clinical trials on the use of botulinum toxin. I persuaded, forced and blagged my way on to that study; I was patient number 51. We conducted the study and I signed every waiver under the sun. I was not interested in suing if something went wrong, but I wanted the hope that it would change and improve things. It did. That drug was life-changing in dealing with some of the side-effects of multiple sclerosis, and NICE has now approved it.
I assure your Lordships that in any study you undertake, in any research you do, you will find that there are tens of thousands of us, particularly those suffering the worst diseases such as motor neurone disease and Parkinson’s, who will volunteer to participate in clinical trials. We do not want to wait five years while another pile of mice and rats are experimented on. This rat is willing to become a guinea pig at very short notice.
I cannot see any medical harm from my noble friend’s Bill. I can see that there may be a loss of income for some in the legal profession, but my concern is to get medical treatment when I go to see my consultant or doctor—not to give a lawyer an excuse to sue my doctor if he gets it wrong. The medical profession is being held back, slightly, because of the fear of litigation. If my noble friend’s Bill allows more of us to participate in a rapidly organised clinical trial, or even to test out drugs that have been approved for one use and may be beneficial for another, we should be allowed to do so.
I have never sat in this Chamber or the other place and demanded rights for this or that, but those of us with some of these illnesses can make a contribution as we head to our eventual end game. It is not just trying any quackery or weird invention in desperation. There will be properly conducted trials along the lines of my noble friend’s Bill, with all the safeguards which the noble and learned Lord, Lord Mackay of Clashfern, suggested. I therefore support my noble friend’s Bill.
Lord Giddens (Lab)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Saatchi, on his extraordinary determination in conceiving of the Bill and in bringing it this far. Many here will remember his opening comments in the short debate some while ago. The noble Lord, Lord Willis, who followed the noble Lord, Lord Saatchi, commented that in all his years in the House of Lords,
“I do not think I have ever heard a more moving, considerate or emotive speech than that of my noble friend Lord Saatchi”.—[Official Report, 16/1/13; col. 761.]
We have heard another emotive and powerful speech from the noble Lord this morning.
A good deal of public discussion and consultation has ensued since then. Emotion and compassion may remain the driving forces behind the Bill, but it must clearly be shaped by reason, since we are talking about promoting the cause of medical science. It is fair to say, as we have heard today, that core aspects of the Bill remain controversial and fiercely debated.
At the minimum, the noble Lord, Lord Saatchi, has stirred up a significant debate, which has involved many people, including patients, and has had the outcome of unsettling the medical establishment to some extent. I have been sitting here and the noble Lord, Lord Winston, has been fidgeting away through some of the observations that have been made; he himself gave an extremely interesting speech. However, whatever else happens, the noble Lord, Lord Saatchi, has already achieved a great deal by stirring up the issues and bringing them to widespread attention.
I lend my general support to the Bill, although I accept that there are some difficult problems to be resolved. I have a different view, as someone who has worked on innovation issues for some years, from most noble Lords who have spoken so far. I am a social scientist. If you look across the whole field of science and technology, we are living through a period of the greatest and most accelerated innovation in human history. There has never been a period with so many breakthroughs and transformations in so many areas of the sciences and other aspects of our lives. In terms of its speed, scope and global nature, this is a time of technological and scientific innovation simply beyond parallel.
In some areas which overlap heavily with medicine, innovation is exponential rather than simply linear. This is the backdrop to the concerns of the Bill, which I take to be—in some parts, anyway—about the widening gap between the accelerating pace of innovation and the time-consuming nature of established testing procedures. There is often good reason for caution in bringing new treatments to the patient. Yet with the onrush of advances it must make sense to pioneer much faster ways of deploying them, especially when the level of need is acute. We have heard from two noble Lords next to me that the medical profession is exploring various ways of doing this and it is necessary to do so. However, the proposals in the Bill are certainly worth pursuing to see whether they do add something different.
The point of the proposals as I understand them is not only—perhaps not even primarily—that some people close to death might be saved or have their suffering alleviated. It is, following what the noble Baroness, Lady O’Neill, has said, that their involvement could bring benefits to perhaps very large numbers of people in the future if this is seen as part of an ongoing learning process. Like everyone, I think that plenty of questions remain which need to be explored if and when the Bill proceeds. I will briefly mention three.
If the Bill’s objective is to be a kind of mutual learning process, which is how I see it—I was encouraged by what the noble Lord who referred to himself as a rat said in his contribution—we have to decide what would be the nature of the evidence base that is accumulated and who would police it. Open-source access will help but is clearly not enough in itself. I was reassured to hear that there is an Oxford initiative, referred to by the noble Lord, Lord Saatchi, which might be a beginning. This would need to be done in a systematic, co-ordinated way or it simply would not belong within the province of science.
Secondly, as the critics ask, are there adequate safeguards to prevent an imbalanced dialogue between patient, doctor and relatives? We know that it would not be the patient’s decision alone; relatives would almost certainly be called in along with the doctor. This issue has to be explored. Since patients are in a highly vulnerable position it is not always clear that there is an egalitarian dialogue between doctor and patient. I do not say that it cannot be achieved, but this has to be further explored.
Thirdly, as has been mentioned by noble Lords and is important for us social scientists, well motivated policies often have unintended consequences. These have to be thought about in advance. For example, a well publicised case in which a treatment backfires through this process might produce greater rather than less conservatism if it achieves a great deal of public attention. My question for the Minister is whether people are thinking about the possible unintended consequences. Have they been thoroughly scrutinised and thought through?
I hope that the Minister will comment on these points. However, I reiterate that the Bill should be taken forward, and repeat my congratulations to the noble Lord, Lord Saatchi, on his quite extraordinary, amazing persistence, involvement and capacity, and on the speaking qualities that he has demonstrated in pushing this on.
Lord Goodlad (Con)
My Lords, I join other noble Lords in congratulating my noble friend Lord Saatchi on his achievement in securing Second Reading for his Bill and on his advocacy today, and I wish the Bill a successful passage. I also applaud the Government’s role, in which I believe the Minister played a significant part.
The potential implications of the Bill’s enactment are impossible to predict with exactitude, but they could be of great importance. Personally, I hope that enactment of the Bill will lead to an improvement in the understanding and treatment of mental illness; we have heard from noble Lords who are expert in other fields. I was fortunate that my home for the first 14 years of my life was a mental illness hospital—The Lawn, Lincoln—at which my late father was for many years the medical superintendent. I see the Bill as potentially advancing the purposes of his working life.
The extent of mental illness is huge. The Medical Research Council Review of Mental Health Research in 2010 said:
“Poor mental health is common and disabling, affecting 16.7 million people in the UK at any one time and accounting for 15 per cent of all the disability due to disease. It is estimated to cost at least £77 billion annually in England alone and severe forms of mental illness are associated with social exclusion and deprivation”.
The potential for the Bill to improve knowledge and treatment of severe mental illness, anxiety and depression, and neurodevelopmental learning and intellectual disabilities is very significant.
The responses to the Government’s consultation earlier this year have not yet been published, but a response was submitted on behalf of the Faculty of Academic Psychiatry and the Special Committee of Psychopharmacology, both of the Royal College of Psychiatrists, by Professor Anne Lingford-Hughes, vice-chair of the Faculty of Academic Psychiatry. In that response she said that,
“in the last few years management of risk has increased such that doctors may not be able to be as innovative as they wish. NICE demands a certain level of evidence, which may be lacking … A likely unintended consequence of NICE is that some provider organisations appear to regard them as a protocol, with the result that if NICE does not recommend a treatment or approach, a doctor will find it hard if not impossible to deliver it. We suggest that fear of litigation is at the heart of this caution”.
Referring to the draft Bill, which was the subject of the consultation, Professor Lingford-Hughes continues:
“The definition of ‘doctor’ requires consideration since currently ‘doctor’ means ANY registered doctor, specialist or not, and therefore the way is open for any doctor who might be wholly unqualified to determine whether the conditions of subsection (3) apply”.
Today is not the occasion to consider all further concerns of the Royal College of Psychiatrists, which we shall address during the Committee and Report stages. However, I hope that in considering the Bill the Minister will confirm that the Government will give full attention to the opportunity created by the tenacity of my noble friend Lord Saatchi to the interests of the mentally ill, as well as of countless others.
Lord Brennan (Lab)
My Lords, everybody in the House admires the determination of the noble Lord, Lord Saatchi, in advancing the Bill. I am sure that noble Lords all agree that we should improve and enhance responsible medical innovation. However, the question to answer is not that, but whether the Bill performs a significant part of that objective. I speak as a practising barrister who has done medical negligence over the years on both sides, and as a trustee of the International Centre for Circulatory Health at St Mary’s Hospital, which regularly finances cutting-edge research into circulatory health.
Let us test the Bill against the objectives. First, is it necessary? Secondly, are there dangers? And thirdly, how does it fit in to an overall framework for improving medical innovation in this country?
First, is the Bill necessary? This point has nothing to do with litigation. It is highly unusual, and I cannot at present think of another example of a statute that gives legal immunity to a profession in certain circumstances. The Bolam test, as it is called after the case that decided it—which was explained by the noble and learned Lord, Lord Mackay—applies to all professions, not just to medicine. Therefore to give such an immunity by statute is highly unusual. The first and obvious question is: is it necessary? Is the present law lacking? I beg to differ from the noble and learned Lord, Lord Mackay, whom I respect as a most distinguished lawyer, for the following reasons.
The Bolam test—whether the practice accords with a responsible body of opinion—was developed in another case, called Bolitho, in which I appeared in one of the sides of the argument in the House of Lords, which said that that test had to be refined. If there are different bodies of responsible opinion, the test is not a numerical one—whether there are in existence such opinions—but looks at the logical basis to them. Can they be justified in risk-benefit analysis as being in the best interest of the patient and in accordance with a reasonable standard of care? That is an efficient test because it is not numerical; you can hypothesise on a specialised sector of medicine where there might be only two practitioners, or even just one, in a very specialised kind of operation, for example. The test would not fail because of numbers but would be applied on the basis of risk benefit and the logic of serious sustainable practice.
I therefore venture to suggest that the majority of lawyers and judges in this country at the moment would say that the present test was adequate and that it has not hindered the advance of a variety of medicine but has supported it. The noble and learned Baroness, Lady Butler-Sloss, in her then role as President of the Family Division, decided a case where the operation to be carried out on a patient who did not have capacity was pretty well unique. She determined that case on the Bolam test—was it logical and in the best interests of the patient? This has nothing to do with litigation but is to do with principled conduct of professional practice in this country. I am not aware of any evidence of a substantial kind that litigation is affecting doctors’ ability and desire to introduce innovative treatment.
The next question is: are there dangers? The Bill does not distinguish between private and public medicine. Its text almost presupposes public medicine as the paradigm. It refers to any condition, as the noble Lord, Lord Colwyn, pointed out, at any stage of that condition. The risk is obvious. Some practitioners, small groups in a private practice, or the private sector of a medical practice will know that they are going to be legally immune, or will feel confident that they are, and will take advantage of this. It is self-evident. We know, historically, how vulnerable patients will do anything; even with pretty average clinicians, when they have no great confidence in them, some people will do anything in medical terms. That is a danger, and this Bill does not embrace sufficient protections to meet that danger.
Noble Lords should remember the MMR scandal, where the proposed treatment of the rebels led by the medical man who produced the paper, was, “Let’s have a treatment that involves no treatment—don’t give the MMR jab”. We cannot assume that, in this modern world, everybody will act responsibly. There is a risk of medical quackery, and the Bill is not presently sufficient to meet it.
Finally, what about the bigger picture? It is dangerous to conflate the words “doctor”, “patient” and “treatment” as the basis for a test of medical innovation, because it does not take into account the supply chain of medical innovation—the inventors, universities, medical scientists and the big medical companies in pharmacology, or whatever, all of which are inventing. That passes on into clinical trials—and, as the noble Baroness, Lady O’Neill, pointed out, they need serious attention—and into the medical marketplace, where doctors learn about it and apply the treatment. They are the end point in a long process. This Bill does not take that process into account but concentrates particularly on the doctors’ decision. I suggest to the House that that is inappropriate. If we want to do something about medical innovation—I refer to the contribution of the noble Lord, Lord Turnberg—we must look at bureaucracy and regulation and other impediments. With the challenge of cancer and diabetes, with which my trust is concerned, there is much more to be done. We should not allow this Bill to detract from the fact that those major illnesses require a major campaign or programme—call it what you will—by society in general and the state in particular. I am deeply concerned about this Bill, but it could be the vehicle for a much greater attempt to improve medical innovation.
Lord Woolf (CB)
My Lords, like those who have gone before me, I congratulate the noble Lord, Lord Saatchi, on his Bill and endorse the view of the law as it is at present, so clearly enunciated by the noble and learned Lord, Lord Mackay. What is important to appreciate—and, possibly, this may not have come through clearly in some of the speeches delivered today, although all of them were carefully considered and moderate in their tone—is the fact that the Bolam test, good as it is in the courts for determining questions of negligence, is not designed to deal with the question of innovation, although it has been tempered so that it does not prevent innovation, as it might otherwise.
Some time ago now, I had the task, given to me by the noble and learned Lord, Lord Mackay, of looking at civil justice and proposing reforms to it. The area in which there was the greatest need for reform was with regard to medical negligence and how such cases were conducted. There was a remarkable situation whereby doctors and patients were unable to speak to each other and had no confidence in what would be the consequence of doing so. The doctors on the one hand said, “We are threatened by these actions, which can ruin our lives and our careers”, and the patients on the other hand said, “All I wished was for somebody to say sorry for what happened, and no doctor came and said that to me”. The reason for that was that the doctors were worried that, if they did say sorry, it would be interpreted as an admission of negligence, whereas no sensible court would ever take that view.
I stress these matters because, at present, doctors do what I would regard as vital work, taking their courage in their hands and doing what they think is in the best interests of their patient, even though it involves innovation, while having no way of telling beforehand whether they can successfully comply with the Bolam test. The other thing that the law does not do at present is to require doctors to do what is necessary if they are going to innovate in a responsible way—that is, to be open about what they are doing, to make it clear that what they are doing is innovating and to take carefully thought-out steps to see that the cleansing effect of openness that we have heard about applies to what they do. One very important effect of this Bill is to set out a course that must be taken by a doctor if he is going to innovate. Those steps have been gone through in turn by the noble and learned Lord, Lord Mackay; they speak for themselves, and I do not propose to say any more about them than this.
In a Bill of this sort, you can try to find a balance between the dangers involved in innovation and the protections necessary in the interests of the patients, albeit that the patient may not be appreciative of that fact, and may be desperate for something to be done, while no responsible doctor should do what an irresponsible doctor would do. There is always going to be a danger, but there can be a balance. That is a word that really has to be applied with regard to consideration of the Bill. I suggest to the House that it draws a proper balance and takes into account the need to encourage innovation and remove barriers to innovation, while at the same time taking into account the risks by doing so.
The final thing that I would say about this Bill is that it is nonsense to suggest that the culture of litigation that now exists does not have a dampening effect on doctors. The doctors with whom I spoke when I conducted my inquiry made that clear, and doctors whom I have met in the course of my social life have equally made that clear. It is something that hangs over them. At the moment, the problem with the Bolam test is that it may provide them with protection when they get to court, but that is little comfort to doctors who have litigation going from stage to stage through the process to the courts, and whose lives are cast into the shadows by what is happening to them. It will be a great benefit that comes from this Bill, if that is removed by the open and transparent steps that it recommends.
Lord Winston
I apologise for intervening, as I understand that this is a time-limited debate, but this seems to me a very important issue. Every surgical operation in a sense is innovatory because anatomy varies from patient to patient, and many emergencies are highly innovatory when a patient is bleeding. Is the noble and learned Lord convinced that litigation may not be a problem in those circumstances where a surgeon decides not to innovate to try to save a patient’s life when they are bleeding? That seems a very difficult issue under law.
Lord Woolf
Of course, I fully accept that there is a problem in that situation and that not all doctors will be as brave as the noble Lord, given the innovations he told us about in his speech. Other doctors will take the less courageous course and, if faced with an emergency, will take what they feel is essentially the safe route, even though it may not be the best one.
Lord Henley (Con)
My Lords, I start with a brief message to my noble friend Lord Newby, who is no longer in his place, that I will be short and keep within the six minutes. However, I do so purely to remind the noble Lord, Lord Winston, that this debate is not time limited; we can take as much time as we wish as it is a Second Reading debate. We should speak for as long as we wish on Bills of this sort, although the Government can offer guidance as and when they wish. It is largely on the question of the timetable that I wish to speak this afternoon.
I support the Bill for the reasons given by my noble friend Lord Saatchi in his very good précis of it. It is designed to protect the patient and nurture the innovator. I will say no more about the Bill’s merits as they have all been dealt with by other noble Lords, whether speaking as lawyers, medical practitioners or others.
As a former participant in the usual channels, I want to talk about the timetable and to remind the House that this debate is not time limited; indeed, perhaps I should have intervened earlier to point that out. I also want to talk about the truncated nature of this debate and how we can push the Bill on to make sure that it gets to the Commons and has a reasonable chance, despite the difficulties of dealing with Private Members’ Bills, of completing its passage before we rise some time next April.
I find it rather peculiar that a Bill that has attracted 23 speakers should have been put down for debate today, followed by another equally important Bill in the name of the noble Baroness, Lady Deech, which is in turn followed by a third Second Reading on a Bill which seems to have no merit in it whatever as its provisions will all be dealt with by the Deregulation Bill. I simply do not know why the Bill in the name of the noble Lord, Lord Lester, has been put down at all, but there it is. As I say, its provisions are entirely covered by the Deregulation Bill, but for some reason the usual channels decided that it was necessary to debate it when I am told there is a total of 27 Private Members’ Bills queuing up waiting for Second Reading—but, there we are, that is what they have done. Given that we have so few Friday Sittings, it seems very odd to put down for debate today two very important Second Reading debates and one that has no merit in it whatever as the latter will waste time by using up some of those six minutes that my noble friend Lord Newby suggested we should each speak for. I make that plea to the Government. I do not expect a response from my noble friend Lord Howe as he does not have to speak for the usual channels. Having said that, I would be grateful to my noble friend if he could offer reassurance from the Government in his response.
The Government stated in a Written Statement in November last year that they were broadly in favour of the Bill. The Written Statement said:
“The government should do whatever is needed to remove barriers that prevent innovation which can save and improve lives. We must create a climate where clinical pioneers have the freedom to make breakthroughs in treatment”.
It went on to say:
“Their cause is a noble one, which has my wholehearted support”.—[Official Report, WS 74, 25/11/13; col. 74.]
Bearing in mind the difficulty of the few days that are allotted to all Private Members’ Bills, I make a plea to my noble friend to ensure that the Government do what they can to provide time for this Bill to make sure that it receives the appropriate discussion and investigation that noble Lords, such as the noble Lord, Lord Winston, have asked for, and that it can proceed to the Commons so that another place can deal with it before we rise some time next April, or whenever it is.
That is all I want to say. I do not suppose that my noble friend will feel able to respond to that point in detail at this stage. However, if he could respond at some point, I would be most grateful.
Baroness Wheeler (Lab)
My Lords, I, too, pay tribute to the noble Lord, Lord Saatchi, for his courage and determination in bringing the Bill forward. This House has an excellent record in making sure that the importance of NHS innovation and research is kept to the fore of our debates, and in its scrutiny of health and social care legislation, including, most recently, ensuring that both the Health Research Authority and Health Education England have the key duty to promote innovation and research at the heart of their statutory responsibilities and duties.
As all speakers today have said, there is strong support for the principles and intent of what the noble Lord is trying to achieve and widespread respect for the dignified and very powerful and moving contribution and arguments he put forward. There is also full recognition that the Bill raises key issues over how innovation and research can best be pursued which need to be addressed.
Labour has always strongly supported efforts to bring innovative treatments to patients faster and underlined the need for a major effort by government to address the barriers and bureaucracy that prevent progress being made and ensure that innovations are rapidly transcribed into practice. As we know, the consultation on the Bill was conducted on the previous draft of the Bill. Many of the respondents to the consultation rightly underline their desire to see new and innovative medical treatments in the NHS and support the efforts of the noble Lord, Lord Saatchi, to achieve this. We all want to achieve this aim, and the question before us today is how and whether the changes proposed will help achieve this.
Having been a Member of the House for four years now, and like other noble Lords, I cannot recall another occasion when I have received such a huge amount of solid background briefings, legal documents and advice. I have certainly never before experienced such a powerful and overwhelming “home-straits” push from the sponsor of a Private Member’s Bill. The final 60-page briefing of the noble Lord, Lord Saatchi, sets out his belief that the two major concerns of opponents to the Bill are, first, that there is insufficient evidence that the Bill is needed; and, secondly, that the Bill may encourage quackery. The noble Lord, Lord Saatchi, believes that the fear of litigation or disciplinary proceedings stops doctors adopting innovative treatments and reinforces the culture of fear and defensive medicine in a risk-averse NHS.
In July 2013, in response to an Oral Question from the noble Lord, Lord Saatchi, on the costs of medical litigation, the Minister has previously commented that he has seen,
“no evidence that a particularly large or indeed significant element of that bill relates to medical innovation”.—[Official Report, 15/7/13; col. 524.]
Will the Minister update the House on the latest Department of Health information concerning medical litigation costs and any further research that has been conducted by the department on how the increasing litigation bill impacts on medical innovation?
The noble Lord, Lord Saatchi, also argues that the Bill would provide legal clarity and confidence for doctors when they wish to innovate and that without a change in the law many doctors feel compelled to stick to the well worn path of standardised treatments. He has endeavoured to set out under the Bill essential safeguards and an accountable and transparent system for doctors to follow when deciding whether and how to innovate. Our understanding from press reports was that Sir Bruce Keogh, the NHS medical director, had been asked by the Secretary of State, Jeremy Hunt, to set out the process and framework of how the new legislation could work in practice. That, of course, is vital to consideration of the Bill. We now understand that he has been working on amendments to the Bill itself, and I look forward to hearing further from the Minister on this.
Jeremy Hunt’s Written Statement in the Commons on 22 November last year committed the Government to seeking to,
“legislate at the earliest opportunity, subject to the results of the consultation”—[Official Report, Commons, 22/11/13; col. 66WS]—
on the Bill. I look forward to hearing from the Minister what support the Government are giving to the Bill before us, given the changes to the Bill after the consultation. Will the Government be publishing a formal response to the consultation? Do they undertake to make time for the Bill in this Session of Parliament, as the noble Lord, Lord Saatchi, wants to see?
Finally, in his Statement Jeremy Hunt also supported the contention in the Bill of the threat of litigation against doctors but recognised that as just “one … barrier” to medical innovation. The noble Lord, Lord Saatchi, has made it clear that he, too, sees his Bill in that context; and it is important that, whatever the shape of any final legislation, the House acknowledges that too. Medical innovation and the adoption of new treatments require the whole NHS making research and innovation its business—as was so powerfully set out in the Association of Medical Research Charities’ excellent 2013 report, Our Vision for Research in the NHS, which was the subject of a debate in the House initiated by my noble friend Lord Turnberg and referred to by him earlier.
In response to that debate, the Minister’s follow-up letter of July 2013 to my noble friend contends that,
“the current system allows for medics to initiate novel treatments as long as they are in the best interests of patients and with the patient consent”.
That view is supported by the majority of the bodies representing the medical profession and other health organisations which responded to the consultation. During the AMRC debate, the Minister also reported to the House, in very helpful detail, the actions being taken by the various NHS bodies to address the current obstacles to innovation. Sir Robert Francis, a strong opponent of the Bill in its current form, sums up these obstacles in his very concise and to-the-point way as,
“overzealous bureaucracy, scarcity of resources, ethical reservations and decision-making processes”.
What have the Government done to address these obstacles, so fully identified in debates in this House, and the frustrations expressed that the existing processes and pathways are not being fully used? How have they promoted early access schemes to introduce new drugs and treatments? Take-up by health authorities has been painfully slow, so what are the latest figures? What is the latest position on take-up figures on other key measures designed to speed up getting research and innovation transcribed into practice, such as named patient schemes and adaptive licensing schemes? Are the Government satisfied that the Health Research Authority’s new process for speeding up approval for clinical trials is achieving this? How is the variation across NHS trusts in the take-up of NICE-approved technology appraisals and of the actions outlined in the UK life sciences strategy being addressed?
The issue of whether the current law needs to be changed involves complex legal arguments which have been ably set out by the noble Lord, Lord Saatchi, both today and in his briefing documents, and expertly supported by the noble and learned Lords, Lord Mackay and Lord Woolf, and other speakers. These have been equally expertly refuted by noble Lords with deep concerns about the Bill, as well as by the many organisations that have expressed reservations and opposition. They argue strongly that no change in the law is necessary, that a different change is needed and that any additional support required by doctors should be achieved through guidance on good practice, not through legislation.
I look forward to hearing the Government’s view on the proposed changes to the law. The Opposition will be seeking their own legal advice as the Bill progresses. On that issue, I emphasise that Labour’s strong wish and hope is that the Bill should proceed to full Committee scrutiny. The issues raised are crucial, and my understanding is that the noble Lord, Lord Saatchi, is keen to ensure that, rather than any rushed process, there will be a full debate and scrutiny after today.
The noble Lord, Lord Saatchi, is to be commended on his concern to ensure that the importance of patient consent to treatment is firmly embedded in the Bill and that his proposed change in the law would not affect this. As the Bill progresses we will want to see further measures that ensure that decisions on innovative and new treatments are made with sufficient regard to efficacy and patient safety. In this debate we have heard of concerns expressed by the some of the key patient safety organisations about the Bill.
Noble Lords will know that Action against Medical Research has contended that, although having good intentions, the Bill could have the gravest “unintended consequences” by removing a layer of protection and redress for vulnerable patients who are harmed when their doctors act in a way that no other doctor would support. AvMR says that it would also encourage unsafe and unaccountable practice by doctors and lead to further scandals and tragedies. Sir Robert Francis’s concern is that the Bill removes protection from patients and a right to redress without any adequate safeguards. The noble Lord, Lord Saatchi, addressed many of these concerns in his opening speech, and I look forward to hearing the Minister’s response to the AvMR, Sir Robert Francis’s concerns on patient safety and warnings from the medical organisations about safeguarding patients. How do the Government propose to address these concerns?
There is strong concern over how the doctor’s “responsible officer”, referred to in the Bill, is to be identified. What is the Government’s response to this? What is the Government’s view on how this proposed new law will facilitate and help achieve the major culture change that is needed in the NHS among staff at all levels to ensure that research and innovation is everybody’s business? The survey accompanying the AMRC vision report set out the extent and scale of change among staff and patients that needs to happen to achieve the Government’s goal of,
“every clinician a researcher and every willing patient a research participant”.
In summary, we support the principle of the Bill; we support the desired effect that the noble Lord, Lord Saatchi, wishes to achieve; and we want to have the Bill seen and considered in the context of the urgent need to make real progress on tackling the obstacles and barriers that stop the existing laws and processes which support the introduction of new and innovative treatments being fully used and effective. I look forward to hearing from the Minister how he proposes to proceed.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin, as other speakers have, by congratulating my noble friend Lord Saatchi on bringing forward this Bill and on the inspiring way in which he introduced it. I am sure that he will agree that we have been treated to a debate of remarkable quality. It is of course primarily for my noble friend to respond to the speeches we have heard. It falls to me simply to add a few observations from the Government’s point of view.
It is difficult to approach the theme of the Bill without being mindful of the past and what our forebears have handed down to us. This country has a proud history of medical discovery and innovation. In the 19th century, John Snow’s reasoned approach to a cholera outbreak in Soho gave birth to the discipline of epidemiology. Just across London, at St Mary’s Hospital, the 20th century saw the discovery of penicillin by Alexander Fleming—an advance in medical practice that has saved many millions of lives. Today, in the 21st century, the NHS remains at the pioneering edge of health and care.
Exactly a week ago, in this House, I launched the Assisted Living Innovation Platform, putting the NHS at the forefront of using leading-edge technology in healthcare. At the Health Service Journal innovation summit this week, Innovation Connect and Innovation Exchange were launched—websites that make it easier to connect NHS organisations with both industry and NHS innovators. Also, the establishment of 15 academic health science networks continues to support the uptake and diffusion of innovation.
The UK is also proud to host modern and cutting-edge facilities such as the Manchester Citylabs campus. Partnerships between NHS, industry and academia are pushing the boundaries of medical research, generating growth in the economy and helping NHS patients receive world-class care. Notable examples include the Anglia Ruskin MedTech Campus and the Northern Health Science Alliance.
Innovation is of course especially important in tackling the scourge of cancer, the disease that has been the particular focus of my noble friend Lord Saatchi and his Bill. The Government invest in a wide range of research into the causes of cancer, its prevention, screening, diagnosis and therapy, as well as the organisation and delivery of services. Investment in cancer research by the National Institute for Health Research increased from £101 million in 2010-11 to £133 million in 2012-13. Through the NIHR Clinical Research Network, the proportion of patients entering cancer clinical trials and studies is more than double that in any other country for which data exist, including the United States. Annual recruitment in England to cancer studies is nearly 100,000. In August 2011, the Government announced an £800 million investment over five years in a series of NIHR biomedical research centres and units. This includes £61.5 million funding for the Royal Marsden Institute of Cancer Research’s Biomedical Research Centre. The NIHR funds 14 experimental cancer medicine centres across England, with joint funding from Cancer Research UK. Those centres bring together laboratory and clinical patient-based research to speed up the development of new cancer therapies and to individualise patient treatment. In 2012-13, the centres attracted more than £16 million of new funding from commercial partnerships.
The Government invested £23 million, aimed at increasing the capacity of radiotherapy centres in England to deliver intensity modulated radiotherapy—IMRT—so that it can be offered from April 2013 to all patients who might benefit. IMRT is a targeted type of radiotherapy, particularly useful for cancers in the head and neck. I assure my noble friend and the House that our priority is to ensure that all patients, including those with rare and life-threatening or limiting conditions, have access to new and effective treatments on terms that represent value to the NHS and the taxpayer.
However, it is important to bear in mind that patients with rare conditions deserve the same quality, safety and efficacy in medicines as those who have more common conditions. Indeed, I can say in particular to the noble Baroness, Lady Wheeler, that it was partly with this in mind that we announced the early access to medicines scheme on 14 March 2014. Our hope is that the scheme, which launched on 7 April this year and will operate within the current medicines regulatory structure, could give patients with these conditions access much sooner to medicines that may help to treat their conditions. In particular, a promising innovative medicine or PIM designation will provide a positive early signal to industry of the regulator’s views, which will be particularly valuable to SMEs, as well as providing valuable real-world data to companies for use in subsequent health technology appraisal processes.
By giving patients early access to the next generation of medicines before they are licensed, this scheme could help seriously ill patients in areas of unmet clinical need. We continue to support the existing incentives offered at EU level to encourage the development of medicines for small numbers of patients, or “orphan” medicines as they are known, and the development of the Commission’s plans for adaptive licensing, including its launch of the EMA adaptive licensing pilot on 19 March.
Clearly, the development of new and better treatments in cancer care is a noble aim. That is the goal of the Bill, although, as noble Lords have pointed out, its provisions extend to all care, not just cancer care. This House has considered previous versions before: in the previous Session of Parliament the Government decided that this important issue merited a full and open consultation. That consultation ran from February to April this year and the Government received a large number of responses, ranging from detailed submissions by professional bodies, to the personal views of patients and clinicians. We aim to publish a summary of the consultation responses before the House rises for the summer. The Government worked closely with my noble friend Lord Saatchi on the consultation and it was as a result of the consultation that he made revisions to his Bill. If I may say so to him, it is to his credit that he listened to concerns that the Bill could give rogue doctors licence to practise unsafe medicine, and so acted to increase safeguards in the Bill.
I shall deal briefly with one or two questions raised by noble Lords during the debate. My noble friend Lord Blencathra asked why doctors in the US have much greater freedom to prescribe a drug for an off-label indication than doctors in this country. He cited a GMC guideline that he said made it exceedingly difficult for off-label prescribing to take place. I hope my noble friend will forgive me for not knowing the intricacies of the US system, but I do know that General Medical Council guidance on prescribing is clear that clinicians may prescribe a medicine outside its licensed indication where they judge it is necessary to do so to meet the specific needs of a patient.
The noble Baroness, Lady O’Neill of Bengarve, asked whether the Department of Health was considering a wider review of evidence about clinical trials to encourage patient involvement. Since 2006, the National Institute for Health Research has funded and supported the organisation INVOLVE to advance and promote public involvement in research, including involvement in trials and research studies, from design to publication of results. I also understand that the National Institute for Health Research is conducting a review of public involvement in research called Breaking Boundaries. I would encourage the noble Baroness to involve herself in that work.
The noble Baroness, Lady Emerton, asked about the possibility of vicarious liability for other professionals in a multidisciplinary team. If we look at the way litigation happens, it is hospitals that are sued. We do not expect other MDT professionals to be liable as individuals. In any event, as the Bill is currently drafted, their involvement could be expected to be too remote to found any claim of negligence.
Noble Lords have highlighted the need to strike a proper balance between innovation and safeguards. That balance is a delicate one. Clearly, patient safety is vital and we would all agree that rogue doctors seeking to take advantage of patients with evidence-free treatments must be stopped. Yet a necessary focus on patient safety must not stifle responsible innovation. Doctors should have the confidence to innovate, particularly where existing approaches have been exhausted and where there is no plausible alternative. It is therefore important that the Bill does not create new bureaucratic burdens that could actually decrease innovation, acting against its expressed purpose.
The Bill, as presented, gives a role to multidisciplinary teams in overseeing innovation. This is a solution that Sir Bruce Keogh, national medical director for NHS England, and I do not consider appropriate. Multidisciplinary team meetings involve busy clinical discussions that would struggle to focus on the evidence base for innovative treatments. They are not statutory bodies and their membership varies from specialism to specialism. They may be prone to being under the sway of a dominant consultant. Research and evidence suggest that, while MDTs as a whole are a good thing, their quality can be variable.
For those reasons, Sir Bruce Keogh, through his work with the medical community, has concluded that a focus on MDTs in the Bill is inappropriate. Instead, the Government believe that oversight should come from other doctors with experience and expertise in dealing with the condition in question, in line with the existing Bolam test for clinical negligence. For that reason, the Government believe that amendments are needed to the Bill so that it can as closely as possible reflect the desire to, as my noble friend put it, “bring forward” the Bolam test.
I hope and believe that we can work constructively with my noble friend Lord Saatchi to ensure that the final version of his Bill strikes the correct and necessary balance between safeguarding patients and encouraging innovation as it progresses.
Lord Saatchi
My Lords, I thank all noble Lords who have spoken today. As my noble friend the Minister said, it has been a remarkable privilege to address, and to hear, your Lordships. There may have been moments when it did not sound like it but I think that your Lordships’ House is unanimous in that we want to encourage more innovation but we want it to happen safely.
In that context, I now give an undertaking before the whole House regarding what the Secretary of State has put in motion to deal with the safeguards in the Bill to achieve the dual aim of more innovation, safely. The Secretary of State asked the medical director of the NHS, Sir Bruce Keogh, to examine that, and he has done so with great care and diligence. I believe that the result of his work will be, as my noble friend summarised briefly, that the Government will themselves propose amendments to the Bill in the Public Bill Committee in the House of Commons. I hope that that may be an appropriate point for other amendments to be tabled, following the Government’s example in the Public Bill Committee in the House of Commons.
I give the House this undertaking. I and Michael Ellis, the MP for Northampton North, who will propose the Bill in the House of Commons, undertake here and now to adopt the government amendments that my noble friend and the Department of Health will put forward and to take them forward in our name in the House of Commons.
I thank all noble Lords very much indeed. It is indeed a privilege to have addressed your Lordships and I now ask the House to give the Bill a Second Reading.
Divorce (Financial Provision) Bill [HL]
(10 years, 4 months ago)
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Baroness Deech (CB)
My Lords, this is a Bill for every woman who ever felt that her marriage ended unfairly; it is a Bill for every man who was left with the impression that he had been deprived irrationally of everything he had worked for; it is a Bill for every child whose future material needs are jeopardised by the waste of parental assets in fighting over money; and, above all, it is a Bill to reintroduce transparency, democracy and understandability into an area of law which has moved a very long way from its statutory basis in the Matrimonial Causes Act 1973, Section 25, and needs to be reclaimed and revised by Parliament. I am not alone in this view; it is shared by the Law Commission, the Centre for Social Justice and Resolution, all calling for a fresh start.
The Bill is now urgent because legal aid has been removed from this area of the law. I regret it but we have to adapt. Litigants without representation are a new and large phenomenon. Hundreds of thousands of ordinary people turn up in court at the most emotional moment of their lives, with no clear law to guide them. The burden of steering litigation has fallen on the family judges—and it is definitely not their proper role to conduct the litigation—with the resulting delay and distortion of the way that litigation should be conducted.
The judiciary will no doubt tell you that maximum discretion and flexibility are the right way to handle cases, but that does not help most people. The judges are not there when divorcing couples have to live through months of negotiations through solicitors, with mounting costs; the judges are not there to give advice when a divorcing couple face each other across the table to start sorting it out; they are not there to advise the litigant in person. As the Supreme Court said the other day in the assisted suicide case, there are certain issues that affect many in the population where Parliament, not the judges, must take the lead.
I echo the theme of the previous Second Reading debate in attempting to speak for consumers, not the professionals. There are about 119,000 divorces every year in England and Wales. When divorce was based on fault, there was a rationale for maintenance. That has gone: it is now a law in search of a principle. Divorce itself is not much more than an administrative process, over quite swiftly, but the division of property and assets between spouses is often contentious, long drawn out and expensive. In practice, people of modest means can do nothing other than hope to be rehoused by the local authority; middle income couples will probably have to sell the house to provide two smaller ones; and in the case of very wealthy couples, the sky is the limit. The wife who is least likely ever to have put her hand in cold water during the marriage is the one most likely to walk off with millions, regardless of her contributions or conduct. Hence we find that London is the divorce capital of the world for the wealthy, and the phrases “gold digger” or “alimony drone” have been coined.
The law is uncertain in application because layers of interpretation have been superimposed on the statute. It has been developed by the judges in the past 30 years, during which it has not been debated in Parliament. There have been changes in society, such as civil partnerships, of which there is a rising number of dissolutions, women claiming equality at work and in education, and changed attitudes to divorce and the family. All have left judges scrambling to keep up. They have tried manfully to do so but the result of their ever changing formulation of principles to underpin the law has been to leave couples and their lawyers unable to predict what is the right settlement for them. Stories abound that one has to pick one’s judge, for different judges have varying views about these issues and the settlement may well depend on the predilection of that judge.
The leading judgments in the field inevitably arise from big money cases that go to appeal all the way to the Supreme Court, and their pontifications are not necessarily helpful for low-income families. No matter what one’s opinion of possible solutions, it is impossible to deny that this is an area that desperately needs public and parliamentary input. Go to any of the blogs about this and see the misery of couples who spent a fortune on settling, who do not understand why what seems to them very relevant issues about conduct are not taken into account. Read the many reports that have tried to reform this area and you uncover an area of misery, expense and incomprehension.
One of the ideological arguments which this House must face is the value of judicial discretion as opposed to more formulaic broad-brush law about dividing assets. We have, I posit, the best judges in the common- law world, wielding discretion in each case that comes before them with care, generosity and sensitivity, but the result is uncertainty and unpredictability. Couples are left to bargain in the shadow of the law but they do not know what the law is, or how to find out what it is. I used to run an all-party parliamentary group on family law here and there was one matter on which the members of the public who came were agreed: they wanted a booklet when they got married and when they got divorced telling them what their rights and duties were and what the law was. We fail in terms of the rule of law if the law is unpredictable in advance and far removed from the words of the statute. Not only that, but this state of affairs makes mediation very difficult. And now the Government are calling on all separating couples to try it. This reform would help.
When a couple can afford lawyers, look at what it costs them. In Jones v Jones, the court criticised the racking up of costs of £1.7 million relating to the division of assets of £25 million. Costs spiral out of control as couples appeal up the court structure because, scenting victory, a new principle may emerge or need to be clarified. In another case, a husband ended up after appeal with an award of £50,000 but the costs were £490,000. In another case, £16,000 was spent on dividing up £42,000. I know of at least one case where the costs swallowed up the entire assets and of another where an inheritance from parents was entirely dissipated. I could go on. Although I have great respect for the skills of practitioners in this area, one must take some objections from them to reform with a grain of salt. We have to face a situation where, either because of lack of means to pay a lawyer or in order to reduce discord, couples need to know what the law is and apply it themselves or get a clear, quick opinion on the right division.
The Supreme Court recently said that prenuptial agreements may be binding in principle, with a number of qualifications, and so has the Law Commission recommended. However, with all the exceptions, this invites litigation to challenge every prenuptial agreement, if they were to catch on. One couple recently spent £600,000 litigating over whether or not the prenup was binding. Another spent £2 million. In the most recent issue of Family Law Reports, one prenup was upheld, one was overwritten—even though the husband had signed it three times—and another half a dozen conditions were added for determining whether they should be binding. My Bill will make prenup and post-nup agreements binding, with very few exceptions.
It has been asserted by a bishop that thinking about prenups and the end of marriage may encourage the breakdown of marriage, but most countries where prenups are common have lower breakdown rates than we do. Given that 40% of marriages end in divorce, one can hardly hide one’s head in the sand, and indeed the ability to sign a prenup may even encourage some people to get married who otherwise would have held back for fear of the eventual consequences. The Home Office called for prenups to be binding as far back as 1998, and Resolution did so in 2004. A YouGov poll in 2009 found that 60% of the respondents agreed that they were a good idea.
The rest of the Bill deals with the couple’s assets in so far as they are not dealt with by any prenup. It proposes a system, common abroad and in Scotland, often called the “division of post-marital assets”. There would be a presumption that a fair starting point is the equal division of all the property and pensions acquired by the couple after marriage. Assets owned before marriage, inheritances and gifts would remain in the possession of the owner and not be available for distribution. Thus in a short marriage there might be little to divide, but in a long marriage where the couple started with little, everything would be divisible. There is flexibility in the Bill to allow for the home to be retained for the accommodation of, say, a mother with children. This law has worked in Scotland for 30 years with efficiency and very little litigation.
As I have discovered from the letters and e-mails that I get every time I lecture on this topic, members of the public cannot understand why misconduct is totally ignored in financial settlements by judges while only domestic abuse attracts opprobrium. I have been inundated with sad and angry letters from men and women describing how a family business has been ruined, or a wife has remained in the former matrimonial home with her new boyfriend and the children while the husband has nowhere to live, or a second wife has had to go to work in order to support the first, or a working woman has found that her assets and pension have gone to an ex-husband who treated her badly and has gone to live with a younger woman. In my proposed system, where the fair baseline is a 50:50 division, there will be a good starting point for negotiation and mediation. There ought to be far less need for lawyers to be involved, at least until the point of court appearance, and far fewer court hearings.
The Bill combines autonomy with fairness. It will give women entitlement, not a discretionary allocation depending on the judge. It will protect the family business and the worth of a working wife. It has the potential to save millions in litigation costs, whether met privately or by the state. It will give a sensible basis for starting mediation and negotiation. It will restore some dignity, certainty, economy and clarity to family law. I may have bitten off more than I can chew—I would remind the House that noble Lords who put forward Private Members’ Bills get no help with the drafting—but these proposals are firmly based in reports by responsible organisations and the law of other countries. My noble and learned friend Lady Butler-Sloss is in support, although she cannot be here today, as are many other noble Baronesses in this House. What better credentials can there be?
The Law Commission, which has reported on this issue, has estimated that it will have to do another five years’ work on the matrimonial property element of its proposals, which might end up in a formulaic system. In the mean time, the Law Commission suggests that the needs of divorcing spouses should be defined by the Family Justice Council. The council is a group of senior family law professionals who are being invited to gather together and give guidance to litigants in person and the courts. But not only would such guidance be opaque and not binding, it would bring into question the role of Parliament. It is for Parliament to make the law, and when it is deficient to make it again, not to leave it to a group of professionals whose job is to apply the law, not make it.
There is a plea from many, not just me, to the Government to take this seriously and urgently, and not to leave it until after the next election. It is not a party matter, but I realise that Governments do not like to tackle it because of the emotional and moral issues that it stirs up. To the best of my belief, there would be gratitude from the affected public, so many of whom are almost destroyed by the current system. They would prefer the certainty of misery to the misery of uncertainty that they suffer now. We cannot wait another five years while another million people suffer and their children are even further deprived and stressed.
I have been bold but I should point out that I am a distant relative by marriage of the late Leo Abse MP, who fought a long and slightly eccentric battle to reform divorce law in the 1960s. I, too, shall return to the fight. I have no vested interest in this. Fortunately, I have never been divorced, or earned anything in connection with it. I am but an academic who has studied the subject for 40 years and wishes to see the lot of divorcing couples, and women in particular, reformed and clarified. There may be disagreement in this House and outside about the details but there is consensus that Parliament must take control of this law, with its three pillars: binding prenups, an equal division of post-marital assets, and some curbing of maintenance. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, I strongly support the Second Reading of the Bill. I am delighted to see my noble friend Lord McNally back with us today, with his expertise on this subject.
There is no question that divorce, or the break-up of a civil partnership, produces a great deal of difficulty for both parties. In the case of divorce where there are children of the marriage, it is a terrific burden on the children. Usually the breakdown is preceded by difficult times for the children as well as for the adults, and the longer the argument lasts after the initial breakdown, the greater the damage that is done to the children as well as to the two participants in the original union.
There is a great deal to be said for judicial discretion, fitting for every single case, according to the decision of the particular judge. But I strongly take the view that there should be a clear framework that people who do not need to go to a judge will be able to operate for themselves. In my view, the proposals that the noble Baroness has put forward in her Private Member’s Bill are very suitable for that purpose. They give a framework to separating couples for what should happen in relation to the issues that are likely to divide them. Of course, the Bill does not deal with questions of care and custody of the children and so on, but it does deal with the essential area of the division of assets, with provision after the separation or divorce for other kinds of maintenance.
I strongly submit to your Lordships that the matters that the Bill deals with are all a good way forward. It is true that the Law Commission has this in hand, but—I was a member of the Scottish Law Commission for some time—the Law Commission’s way of working is not always conducive to speedy results. Thoroughness often leads to that difficulty. I agree with the noble Baroness that we really cannot wait for perfection; we can have a reasonable arrangement now which people who are in this situation can look to and on which they can build to frame their own settlement.
I have always had difficulty in seeing why prenuptial and post-nuptial contracts are thought not to be binding. After all, the atmosphere before the marriage is usually the best atmosphere possible for reaching agreement. If agreement is reached then surely there is a lot to be said for giving effect to it. Why should subsequent changes make a big difference? Now, of course, there are agreements and agreements, and various kinds of undue influence can arise, but these are not at the essence of the matter. If the agreement is not vulnerable to that kind of attack, I cannot see why it should not bind the parties when the issue has arisen for which the agreement provides.
As the noble Baroness said, many of the other provisions in the Bill have operated in Scotland for quite a number of years. While I cannot always say that what is good for Scotland is necessarily the best for the other parts of the United Kingdom, on the whole that is a reasonable proposition. That the arrangement has gone forward there without much litigation suggests to me that it is acceptable to ordinary people who find themselves in this situation. Of course, the huge assets of some splitting partners are such that any kind of general scheme probably would not work, but so far as the vast majority of people are concerned, it seems to me that it would work, and the sooner it is put in place, the better.
An attempt was made towards the end of consideration of my Family Law Bill in 1996 to deal with this matter, but unfortunately there were so many other items of contention in that excellent Bill that it was rather difficult to deal with everything. Anyhow, the opportunity is here now and, for my part, I strongly urge this House to take it.
Lord Davies of Stamford (Lab)
My Lords, I hope that I carry the whole House with me when I say that I think that the law should be, above all, four things. First, it should be clear—the citizen has an obligation to observe it and therefore has a right to understand it. Secondly, it should be permissive—we live in a free society and are proud of that, and a free society is defined by the fact that the state intervenes to restrict the freedom of the citizen only to the extent required to defend and protect the freedom of other citizens. If something is not allowed which, if it were allowed, would not undermine the freedom of other persons, that is an anomaly and should be addressed. Thirdly, the law should be protective of the vulnerable, of the weak and of the less sophisticated against the more sophisticated. Finally, the law should be just and fair. It should reflect the principles of justice and make the proper balance between the protective and the permissive.
In my view, the noble Baroness’s Bill would advance the law in all those four very important respects. First, so far as clarity is concerned and as the noble Baroness has already explained, there is an unanswerable case that jurisprudence in family law has run far away from the Matrimonial Causes Acts. It is impossible to know where one stands and what precedent one might be guided by in trying to anticipate future judgments. That is a very unsatisfactory state of affairs. It is exactly the same with prenuptial agreements. Sometimes they are enforced by the courts; sometimes they are not—it is completely unclear what the law is, and that is very unsatisfactory. When you have a situation like that, it is absolutely the duty of Parliament to do something about it. I congratulate the noble Baroness on having decided to do that with this Bill.
Secondly, in the area of fairness, the Bill introduces the notion of matrimonial property, a concept drawn from Scotland, as the noble and learned Lord, Lord Mackay, has reminded us, and drawn by Scotland from the Roman law tradition which it has. A similar principle exists in the Roman law jurisdictions on the continent, where one can choose on marriage a regime either of séparation des biens or of communauté des biens. If one chooses the séparation des biens, one keeps separate the property that one brings to the marriage from other sources. The noble Baroness’s Bill would introduce into English law the notion of matrimonial property that would be subject to division on divorce and other matrimonial property that would be protected, such as inheritances and—according to the text of the draft Bill before us—gifts. That is definitely an enhancement of justice.
Then there is the contribution that the Bill would make to making the law more permissive. That is achieved through the provisions for prenuptial agreements. In a sense, if you have the rest of the Bill—the matrimonial property et cetera concept—then you have less need for prenuptial agreements, but on the permissive principle it is a good idea to make it absolutely clear that, if people want to enter into these contracts, they should be able to do so. Why? It is simply because, if two citizens wish to have a contract about anything, they should have an assumed right to make that contract—with the normal common-law protections about disclosure of material facts, no undue influence and so forth. The burden is on those who wish to prevent two mentally capable adults from entering into such a contract. We have contracts in this country that are enforceable in law for all kinds of things: employment contracts, sale and purchase contracts, leasing contracts, licensing contracts, exclusivity contracts, partnership contracts and so on. Only gambling contracts are not enforceable under the law in this country. It would be an extraordinary state of affairs to put prenuptial contracts—with all the protections required and that are in the Bill before us with one small exception that I shall come to—on the same footing as gambling contracts.
I should not so much declare an interest as my own record on this matter. Many years ago in the other place, I introduced a Bill to provide legal standing and protection for prenuptial agreements, giving legal force to them. That got to an unopposed Second Reading but was never taken further for reasons of time. I have previous on this particular subject.
It seems to me that prenuptial agreements not only meet the criteria that the law should be permissive wherever possible but also advance the fairness of the law. People have been deeply offended by some of the gold-digging—that is the word one must use—that has had a lot of publicity recently. The McCartney case was famous. There was a case in point recently when one lady might have been involved in successful gold-digging on two separate occasions in the course of a relatively small number of years. That offends the public’s sense of justice. Both the noble Baroness’s provisions on the matrimonial property concept and prenuptial agreements would tend to address that issue and make the law more obviously fair and just. That is a very desirable achievement.
On the impact on people’s willingness to get married, it seems to me that in practice the opportunity of having prenuptial agreements for those who might want to take advantage of them would, logically, encourage more people to get married. Some people certainly feel inhibited without them. In my own anecdotal experience, I can think of people who have been inhibited from formalising their relationship because they wanted to protect family assets of one kind or another that they already had. The Bill would enable them to engage in a marriage with no such inhibitions or fears. That is a thoroughly desirable thing.
I make just one perhaps niggling comment or suggestion, but it is important. Full disclosure should include not merely assets as provided for in the Bill but also liabilities. A false picture would emerge of the net worth of the two parties if the liabilities were not disclosed. Parties to a potential prenuptial agreement might think, if only the assets were fully disclosed, that they both had assets of a similar order of magnitude when in fact one had massive liabilities and the other had none. There might be enormous distortion in showing such a balance, so it would be quite false not to bring to the attention of the two parties a true and fair picture at the outset of the negotiations over that particular contract.
I hope that the Bill makes progress; I think that it is urgent that it does so. I hope that it becomes a part of the law of this country as soon as possible and that the noble Baroness, whom I congratulate again on this initiative, will take on board my one small suggestion.
Lord McNally (LD)
My Lords, I promised the noble Lord, Lord Faulks, when he took over from me in December, that I would not keep popping up like Banquo’s ghost at MoJ debates to reminisce about my past triumphs. I am making an exception today for three reasons, but, first, I thank the noble and learned Lord, Lord Mackay, for his kind words. I do not know about the noble Lord, Lord Faulks, but I always had a slight tingle in the shoulder blades when I found that the noble and learned Lord was in his usual place, just behind an MoJ Minister, although, most times, he dug me out of a hole instead of putting me into one.
As I said, I make the exception for three reasons. First, taking the point of the noble and learned Lord, Lord Mackay, about the thoroughness of the Law Commission, I pay tribute to it and its work. I couple that tribute with praise for what is now the not so new fast-track procedure used in the House of Lords to expedite Law Commission Bills and I couple that praise with praise for the noble and learned Lord, Lord Lloyd of Berwick, who has invariably taken the chair in Committee and guided Law Commission Bills through. As a result, we now have a steady flow of law reforms and updates which greatly benefit our citizens and the law.
My second reason for speaking is to give qualified support for the Bill before us today and to congratulate the noble Baroness, Lady Deech, on the clarity with which she brought the Bill forward. As she told us, divorce is painful, stressful and often costly. It can have a lasting, damaging impact on children. Making the financial consequences of divorce easier to navigate does not undermine marriage. It helps to mitigate the worst consequences of marriage breakdown.
My support for the Bill is qualified because we are still awaiting the Government’s response to the Law Commission’s draft Bill, which is promised for August. I must tell the Minister that I have never liked government responses promised in August. As a rule, they are not the best months for parliamentary scrutiny.
As I understand it, the noble Baroness, Lady Deech, believes that the Law Commission’s draft Bill still leaves loose ends and uncertainties. Critics of her Bill claim that its impact would be much wider than that of the Law Commission recommendations and that it proposes significant changes to the law of financial provision on divorce, not all of which would be welcome. It seems to me that, if the Bill is given a Second Reading today, those are matters that can be examined in detail in Committee. What seems to be common ground is that there is need for action by Parliament to clarify basic principles in this area so that the law better reflects the needs of modern society. I thoroughly agree with the noble Baroness that this is a matter for Parliament, not for judges.
My final reason for intervening has already been referred to by the noble Baroness, Lady Deech. It is to couple my support for action in this area with a reminder to the House that the recently passed Children and Families Act makes it a requirement for a person who wishes to start certain types of family proceedings first to attend a family mediation information and assessment meeting—a MIAM—to find out about and consider mediation rather than going through the stressful experience of going to court. Legal aid is available for that process and there are exemptions to that compulsion where a case is genuinely urgent or there is evidence of domestic violence. Mediation has a good story to tell of thousands of people achieving settlements in a way that is faster, cheaper and less stressful than mud-wrestling through the courts.
The noble Baroness, Lady Deech, told us that development in this area of law has been left to judges for the past 30 years. The Law Commission started its work in 2009. Now is the time for Parliament to step up to the plate and deliver clear and contemporary legislation, which may in the end be a synthesis of the proposals in the Bill, the work done by the Law Commission and the Government’s August response. I hope that in his response today the Minister will indicate that that is his direction of travel.
Lord Hope of Craighead (CB)
My Lords, I, too, welcome this much needed Bill and congratulate the noble Baroness, Lady Deech, on bringing it forward. I know that it is the product of a great deal of thought and hard work on her part. I think we must all be grateful to her for that and for providing us with the opportunity to debate her proposals.
The measures that the Bill contains are of particular interest to me for a variety of reasons. First, to a very large extent, they bring the law of England and Wales about financial provision and property adjustment on divorce in line with the law of Scotland, as the noble and learned Lord, Lord Mackay of Clashfern, told us. I should add that I lived and worked with that system in the Court of Session for about 10 years before I came to this House as a Lord of Appeal in Ordinary in 1996. Secondly, I had something to say about that system in the high-value divorce case of Miller v Miller in 2006, which I will come back to in a moment. Thirdly, the provision about prenuptial and post-nuptial agreements recalls for me the case of Radmacher v Granatino, which was heard four years ago in the Supreme Court by nine justices, of which I was one. For all the reasons that the noble Baroness has given, legislation on these matters has for far too long been delayed and is now badly needed.
Perhaps I may start with the provisions about matrimonial property and periodical payments. These are closely modelled on Sections 8 to 11 of the Family Law (Scotland) Act 1985. It is worth noting that that Act followed closely a draft Bill that was recommended by the Scottish Law Commission in a report delivered to the noble and learned Lord, Lord Mackay—as, I think, the Lord Advocate—in November 1981. It was the product of many years’ research and it had taken a long time to be brought forward. However, there it was in 1981 and eventually that Bill was brought before this Parliament and enacted almost without amendment from the recommendations made there. The aim of the Scottish Law Commission was to do exactly as the noble Lord, Lord McNally, said: to replace judicial discretion with clear indications and principles laid down by Parliament, which the judges would be required to follow. It put forward a system that was based on what were described as fair and clearly stated principles but which left enough scope for judicial discretion to allow for different circumstances in different cases.
That Bill attracted little criticism when it was debated here but I remember, when I was sitting as Lord President in the Court of Session, being rather suspicious of it because at first sight it seemed to cut back the element of discretion for the judges too far. In fact, when one looked at the way in which it was working, it appeared that that was not really so and that there was enough discretion to allow for different cases, as the Law Commission had predicted. What I sought to do in the Appeal Court in which I sat was to discourage appeals that interfered with the exercising of discretion by the judges. The old system was fine when a very few judges in Edinburgh were dealing with divorce cases, but this measure coincided with the broadening of the jurisdiction to sheriffs sitting throughout the country. The risk of different views being taken by judges was very real, but it was an important change and, in the end, I greatly welcomed it when I was sitting as a judge.
However, there are two problems in this Bill and perhaps I might focus on them quickly. The first is the one that I mentioned regarding the case of Miller, which was drawn to the attention of the court in Edinburgh as that Act became law and was worked out in practice. It is the definition of matrimonial property and tying its net value to the date when the parties separate. The problem was that sometimes a great deal of time elapsed between the separation and the making of the award and to freeze the value at the date of the separation was in many cases seen to be unfair. That was cured by an amendment in the Family Law (Scotland) Act 2006 and I respectfully suggest to the noble Baroness that her Bill might be amended to take account of that amendment, replacing her formulation by directing attention to the date of the award.
The second point that troubled me greatly in Miller was the situation of a high-earning wife who gives up a career to look after the children, and indeed her husband, in the course of a marriage. I had before me at the time when I was dealing with Miller a letter from a lady in exactly that situation who lived in the south of England and was being taken to divorce in Scotland by her husband, in what I thought was a blatant piece of forum shopping, so that he could take advantage of the three-year “clean break” principle. Her position was that she could never return to the high-earning position that she had held before she married—that simply was not realistic—so she was being required, as the Scottish Law Commission put it, to adjust to a lower standard of living.
That seemed very unfair to me and I wondered whether the law could not be adjusted to give a little more discretion to judges to allow for such cases where high-earning women were being deprived of their ability to continue earning because of what they had done for the family and for the husband. I suggested that the law may have made sense in 1981 but, now that there was so much more equality and the opportunities for women to earn higher earnings was so much greater nowadays, it needed to be rethought. I was quite severely attacked by academics in Scotland for making that suggestion because it looked as though I was criticising the Scottish Law Commission. I was not trying to do that; I was just saying, “Let’s bring the matter up to date”. I suggest that the noble Baroness might like to consider that point, too.
I have one other point to make on the matter of post-nuptial and prenuptial agreements. The problem that the Supreme Court had in Radmacher v Granatino was twofold. First, there was a policy objection, which was based on the view that these agreements, particularly the prenuptial ones, in some way encouraged parties to breach the duty to live together that was the essence of marriage. We in the Supreme Court were able to say that that policy should be now discarded and I think that it no longer plays a part in modern thinking, but what we could not do was alter the primacy that the statutory law gave to the court in deciding whether these agreements should be enforced. It was important then, and it is important now when one reads the noble Baroness’s Bill, to substitute that with the primacy of the agreement of the parties, which takes one back to the situation that I, in common with the noble and learned Lord, Lord Mackay of Clashfern, would have seen the position to be in Scotland and indeed many other countries. That would substitute the agreement of the parties for the position of the court and in my submission that seems to fit well with the thinking in many places around the world. It would do something that the court could not do, which of course is the great benefit of legislation, as I think the noble Lord, Lord McNally, was suggesting. There is quite a lot to debate in this Bill when it comes to Committee and I very much hope that it has a Second Reading and will then proceed to that stage.
Baroness Bakewell (Lab)
My Lords, in the 1830s Caroline Norton campaigned for the Custody of Infants Act, which for the first time allowed women separated from their husbands—though not of course divorced—access to their own children. In the 1870s Caroline Norton went on to campaign for the Married Women’s Property Act, which allowed wives to keep some of their own property within their marriage. Today she is immortalised in her portrayal as Justice in the murals in this very House, painted by the Irish artist Daniel Maclise.
This Bill to amend the Matrimonial Causes Act 1973 is in that fine feminist tradition, and I congratulate my feminist friend, the noble Baroness, Lady Deech, on bringing it forward. I support it for four reasons. The first is demographic change. People live longer, and over a long lifetime there is more opportunity for things to go wrong—therefore, more divorces. People not only divorce but create separate families, have their own children from the first family and from the second and, perhaps, write wills favouring both. The complexities of how to deal with financial settlement only intensify with the situation of demographic change.
My second reason is that we live in times of ever greater equality between spouses. Not long ago, within living memory, the man on the whole was the breadwinner and the woman stayed at home and looked after children; on divorce, it became his responsibility to care for her and the children. Now, wives, by and large, have working lives, if not successful careers, and they bring wealth of their own to the marriage. This law would mean that assets acquired before the marriage would not be available for distribution. Women are marrying later. They are living equal lives. For that reason, this amendment that safeguards their property before marriage is increasingly appropriate.
Legal aid has largely gone from many aspects of this situation. We know that many couples who are separated and seeking divorce go on the internet to find ways of running their own divorce because the expenses are so very great. They do it at a time of enormous emotional stress and strain. They perhaps are not thinking clearly. It is difficult for them to find their way through the intricacies of the law as it stands. This Bill would help them deal with that.
Prenuptial agreements are more and more common for the reasons that are implicit in what I have said about women with careers. They represent a sensible approach for both parties. Currently, as we know, they happen primarily among the rich. We read about celebrities and rich City folk arguing about huge shares. Those stories make headlines, but ordinary people need prenuptial agreements that have the power of law: this is very important for them.
Finally, mediation between divorcing couples becomes less protracted if the rules are clear. The agonising months that follow a separation and divorce militate against the settled family life that fathers and mothers would wish for their children. Anything that clarifies the situation and shortens the period of distress is to be welcomed. That is why I support this Bill.
Baroness Meacher (CB)
I rise to contribute briefly to this important debate and most particularly to applaud the noble Baroness, Lady Deech, for taking the initiative to raise awareness of the urgent need for reform of the Matrimonial Causes Act 1973. As she said, modern marriages are very different from those of the early 1970s, such as in the role of fathers in the family and often their very active involvement in childcare. Part-time and flexible working by both parents, increasingly common today, would have been inconceivable in the 1970s. The growth of nursery provision and after- school clubs for children of school age has enabled mothers to be far more involved in the workplace than in the past. All this has changed the financial relationship between couples.
There are couples who opt for a very traditional marriage where for perhaps 20 years the mother stays at home looking after the children and the father goes out to work. The law will have to take account of them.
One of the reasons why divorces are so detrimental to children is the long, drawn-out court battle that too often accompanies them. The judge-made law, largely based on big-money cases of little relevance to couples with limited resources, has created too much uncertainty and complexity, opening opportunities for barristers to fight over endless details on a wide range of issues, costing vast sums of money and creating many months of misery for the whole family. The lack of clarity in the law also makes mediation much more difficult and unlikely to succeed in most cases. Any involvement of the courts in financial settlements should be seen as a failure of the system and of the parents as well—but while the law remains as it is, parents are often driven into the courts very much against their will.
The removal of legal aid from this area of law has already been mentioned. It was rightly highlighted by the noble Baroness, Lady Deech, and other noble Lords as a factor adding to the urgency of the need for reform. I have recently been close to a case where the parents represented themselves. The initial judge, who was certainly no mathematician, clearly found the financial issues impossible to resolve. The initial judgment was completely unworkable. The result was that the whole thing was sorted out only a year later on appeal. This case was limited to financial issues, and in a clear legal context it should have been sorted out in a matter of weeks through mediation. Under the existing law, it took more than two years in all to sort out the financial matters.
I also warmly welcome the proposal of the noble Baroness, Lady Deech, to limit periodical payments to three years or thereabouts. The current position, under which a divorce is a life sentence for the contributing party, cannot be right in the modern world. Yes, of course the lower earner needs time to adjust, but the contributing party also needs the prospect of a life free from the consequences of a failed marriage.
Finally, I strongly support the noble Baroness’s proposal that prenuptial and post-nuptial agreements should be binding. However, this has to be conditional on the parties having received independent legal advice—or at least having had the opportunity to do so—having made full disclosure and having entered the agreement a reasonable period before the marriage. All of that makes perfect sense to me. Ideally, this should become the normal route to a financial settlement, in which any glitches could be sorted out through mediation. I hope that the Government will allocate parliamentary time to this incredibly important, but in some ways fairly modest, Bill. It would transform the experience of divorce for many couples and save a great deal of misery and money.
Baroness Wilcox (Con)
My Lords, I, too, congratulate the noble Baroness, Lady Deech, on bringing forward, as sponsor, a Divorce (Financial Provision) Bill. From her I learn that, while the divorce decree itself has become largely an administrative process, the division of income and property between spouses is often a contentious, long-drawn-out and expensive process. The noble Baroness has outlined why: the uncertainty of the basic principles in this area, the development of law by judges and changes in society—which I find interesting to read, and feel part of as I have lived that long—with women at work, divorce no longer being fault based, civil partnerships and attitudes to the family. I add to her list the fact that we are all living for so long.
We have heard both why it is urgent for Parliament to revisit the fundamental law governing financial provision and how the Bill will work. I congratulate the noble Baroness, Lady Deech, on providing me with a briefing note that was written in plain English. As the originator of the Plain English Campaign and the former chairman of the National Consumer Council, I am only too delighted to be taking part in a Bill which, if it goes farther, I feel that I will be able to understand. I am not a lawyer, and so this bodes well for me in the future, and for allowing those who have to divorce better to understand the process. The last thing on divorce I found so accessible to the layman was an excellent booklet written some years ago by my noble friend Lady Shackleton of Belgravia, from whom we will hear later.
Why am I interested in this Bill, as I am neither a lawyer nor a judge? I believe in marriage. I have been both divorced and widowed, so I understand, know and feel deeply what happens during those procedures. However, I still believe that marriage is the best estate for family life: for the bringing up of children, for health and happiness and for companionship. The Bill will especially help older people like myself, divorced or merely widowed, who are afraid to marry again where there are assets they wish to protect and who are reluctant to commit again, fearing a potentially financially disadvantaged position at a time of life when starting again would be almost impossible and far too frightening to contemplate.
The Bill, if enacted, should bring better opportunities, as we have heard, from mediation, less need to go to court, lower costs, reduced trauma for children, and fairer outcomes, recognising partnership in marriage. It should bring clarity and encouragement for people like me to try again. The Bill could be a true vote for marriage, even if it is for the second time around.
Lord Scott of Foscote (CB)
My Lords, I address your Lordships as a lawyer who is interested in the Bill, although in practice I did nothing in this particular field. The interest for me is provided only by a general interest in the law.
The problem with this area of the law is that it tries to deal with a situation in which two individuals, who know one another very well and have probably lived together for some time, are in dispute because their relationship has broken down. They have to come to decisions about what is to happen to them and to their respective lives, to their children—if they have any—and to the assets they have accumulated, because they are almost bound to have accumulated some. That happens at a time when their personal relationship has broken down. There is everything to be said for encouraging the use of prenuptial—and, indeed, post-nuptial—agreements, and everything to be said for making them. However, if they are to be made binding, it is essential that they be put in writing. If they are left as oral agreements, they will simply be another bone to be chewed over by the two parties: “I agreed this—you agreed that”. Long ago in this country it was decided that contracts for the disposition of an interest in land had to be put in writing. I am sure that those sorts of considerations were the reason for that. We have all become very accustomed to contracts that relate to land being in writing, and the same reasoning should apply to prenuptial and post-nuptial agreements; otherwise, they will be just another basis for further litigation between the disputing parties.
It has to be recognised that there is always a tension in deciding what the statutory framework should be for the management of the affairs of the disputing couple post marriage. There is a tension between certainty on the one hand and fairness on the other. Certainty can be achieved by careful drafting of legislation, but fairness depends on the circumstances of the individual case. However, individual cases and people are different, and people have different problems. The greater the certainty, the more likely that the rigidity of whatever the certain system is that has been decided upon will produce, in some cases, unfairness for one or other of the spouses. That is the justification for giving the judges the huge amount of discretion they have under the present statutory framework. Maybe that leads to more dispute and litigation than is desirable; maybe the judges should not have so much discretion. To introduce more certainty or cut down on the discretion would be at the expense of fairness. That is a very difficult balance to strike. The advantages of certainty will not solve satisfactorily all the problems, because the same answer does not necessarily produce fairness for everybody. That is a matter to be considered when one comes to look at the wording of the provisions in the Bill. Perhaps that is not a point for Second Reading, but it should always be borne in mind.
On the Second Reading question, it is clear that the Bill should have one. I join noble Lords in congratulating the noble Baroness on putting the Bill forward. It will require a lot of thought and attention in Committee, but there should certainly be a Second Reading, and there should certainly be agreements in writing. There is another provision in the Bill where agreements are referred to; all the agreements that are referred to in the Bill need to be in writing, so that there can be no dispute between the parties as to what they agreed.
Lord Grantchester (Lab)
My Lords, I support the noble Baroness, Lady Deech, in her endeavours to update Section 25 of the Matrimonial Causes Act 1973, to bring consistency of approach to applications for financial orders, to bring greater clarity of outcome to the distressing ending of relationships, to reduce the stress to families and the combative nature of proceedings to cases, to simplify the existing complexity, to widen the debate outside the legal profession and to give Parliament—the lawmaker in our constitution—a voice and influence on what people want.
I would like to go on, as I cannot find much to commend in the present situation regarding divorce laws. The UK’s financial provisions on divorce are outdated and out of step with those of other jurisdictions. Financial provision swings between divergent spectrums of needs, equality, equity, various definitions of matrimonial property and interpretations of what seems about right on levels of division. We all know that fairness is in the eye of the beholder. The most unsettling nature of the present situation is that the public debate mainly takes place among lawyers, who, after all, have their own interests. Where are the lay members of the Law Commission and the Family Justice Council? I endorse the comments of the noble Baroness, Lady Deech, regarding proposals recently put forward by these two organisations, and I eagerly await the contribution from the noble Baroness, Lady Shackleton of Belgravia, in the hope and expectation that she will show her independence, partnered with her experience and expertise. I was very pleased to see the winning combatant appear in white at the judgment of the Radmacher v Granatino case, which shattered the cultural perceptions of the prevailing judge-made outlook.
I always caution myself on speaking when I have little knowledge but, having been through the situation and having seen the effects of relationship breakdown, I shall share a few comments. In the present situation, the only advice that I can give anyone is to make sure that you marry someone better off than yourself. I would like to be assured that mediation must become a central part of the process concerning any dispute that may have arisen outside these arrangements, or when there are no nuptial arrangements. Any outcome must have some regard to how each party has conducted mediation. I would like to see in any reform that the process has regard to the protection of assets—that is, that the cost of litigation is carefully assessed. This should not be a one-way bet in favour of any spouse, whereby there is no disadvantage to the least wealthy side to challenge at every step. It is disappointing to see that one side should be better off as a result of a relationship breakdown than if the parties had stayed together.
The most vital aspect follows from the reduction and removal of legal aid from the process. At an emotionally distressing time for families, it would be disappointing to see a banking-style development of the legal profession, whereby legal loan companies were to flourish for profit.
There must also be ability to protect wider family wealth from relationship breakdown and allow people to regulate their own affairs. This Bill will give greater certainty to nuptial arrangements by making them more categorical, with fewer exceptions and loopholes than the Law Commission would want. There must be more certainty provided, with certain fundamentals adhered to. We must be clear about what matrimonial property is, and the agreed interpretation of the parties in the relationship. Capital assets and income streams must be separated and clarified. I have seen SMEs, especially farming businesses, shattered when business assets have been built up over generations. As I said earlier, lawyers do not hesitate to apply a rule of thumb on the basis of an image of total assets and advise accordingly to their clients.
Finally, on the pace of change, we are all aware of how society has changed and how divergent cultural approaches do not make the changes easy. Nevertheless, in a will or trust situation, whereby a settlor may have made provision many years previously, there must be the ability to protect the assumptions under which provision was made. In this regard, it was not so long ago that the Law Commission advocated the extension of inheritance to cohabitees in a relationship. That would have a damaging effect on many wills and trusts, which must have the ability to future-proof people’s wishes, as couples may wish to pick and choose which level of commitment they may wish to abide by in their relationships. I am pleased that this Bill does not make any attempt to stray into that territory.
The Bill before your Lordships’ House today takes account of all these reflections and, no doubt, your Lordships will test them, and many others of their own, in Committee. We must guard against perfection being the enemy to the good. One small omission must not make a big enough hole in which we would want to bury this Bill. Parliament must now consider putting divorce and financial provision at relationship breakdown on a better footing than at present. I support the Bill and trust that the Government will enter into constructive participation.
Lord St John of Bletso (CB)
My Lords, I join in warmly welcoming my noble friend’s Bill, which addresses the urgent need for more certainty in the law pertaining to financial orders on divorce and dissolution, which is in a state of constant development. It is also an opportune time for my noble friend to introduce this Bill, following the Law Commission’s marital agreement proposals which, as has been mentioned, were set out in the draft nuptial agreements Bill.
I speak from my experience of being a practising divorce lawyer in South Africa, under Roman Dutch Law, which respects binding prenuptial agreements, and where there is far more certainty in the determination of financial settlements on divorce. I also have a personal strong interest in this Bill as I sadly endured a long and very painful recent divorce, which was both costly and hugely stressful for all concerned, particularly my children. The noble and learned Lord, Lord Mackay of Clashfern, was right to highlight the damage done to children by lengthy divorces.
Whatever may be the objections of the church to prenuptial and post-nuptial agreements, there is no evidence that marriage breakdown is encouraged by the drawing up of these agreements. It is well known that divorce among older couples is on the increase, with recent statistics showing that the highest percentage of divorces occur among couples aged between 40 and 45. There is increasing need for certainty in cases of bequests and family trusts, particularly with couples who have remarried and who want to make sure that they retain their inheritance. For those who have had a bad divorce experience—I note the comments of the noble Baroness, Lady Wilcox—and are somewhat reluctant to commit to another marriage, prenuptial and post-nuptial agreements provide far more certainty and comfort. I agree with my noble and learned friend Lord Scott that these agreements should be in writing. In this regard, I wholeheartedly support Clause 3 of the Bill.
It is a staggering statistic that there are more than 119,000 divorces in England and Wales annually, with financial orders made by the court in about a third of those. As several noble Lords have mentioned, the removal of legal aid has led to a steep rise in self-representation, overloading the divorce courts and causing even lengthier delays. Recent tax changes have also added to the difficulties of couples whose main asset is the family home. Until this year, married couples, or those in civil partnerships, qualified for tax relief on capital gains from the sale of their principal private residence for three years after separation. However, in the Autumn Statement, the Chancellor changed this to just 18 months. This has put more pressure on financial settlements, given the need to conclude the sale of the family home within a year and a half of one party leaving it.
I do not want to repeat the many cogent arguments that have been put forward in support of the Bill. There is no denying that, when it comes to building wealth or avoiding poverty, a stable marriage is in many cases the most important asset. However, the recent Law Commission report highlighted:
“Although the law is largely well understood by family lawyers, it is inaccessible to the general public and there is evidence that the courts in different areas of the country do not always apply the law consistently”.
Among its many benefits, the Bill, if enacted, would certainly provide better opportunities for mediation, less necessity to go to court, far less stress for divorcing couples, particularly for their children, and a massive saving in costs. In this regard, I wholeheartedly support it and hope that it is given a fair hearing in both this House and the other place.
Baroness Shackleton of Belgravia (Con)
My Lords, I practise in this area of law, and started five years after the 1973 Act came into being. I begin by praising the judiciary. In a world in which trust is a rare commodity, where politicians, the police and the press have all been found lacking, the judiciary is without question beyond reproach and stands out as a beacon of hope, commanding the confidence and respect of this country, as well as of others who choose to litigate their disputes here.
The judges work tirelessly, many of them for a fraction of what they have been earning in practice. In the field of law in which I practise, however, the legislation on which they depend is overdue for review and is no longer fit for purpose because its interpretation relies too heavily on the discretion of the individual enforcing it, thereby making it more difficult to predict and therefore advise on the outcome of a particular case. This creates uncertainty; and uncertainty creates litigation. It is for this reason that I wholeheartedly support the Bill, and I am very grateful to the noble Baroness, Lady Deech, for introducing it.
When one enters the building that houses most of the family courts, there is a life-size statue of a judge. The judge has a blank face and a wig, and the statue sits, with its commanding presence, before you go into court. The purpose of its existence is to show the users of the court that the identity of a judge is an irrelevance, and that the outcome of a case would be much the same, whoever happened to be occupying the blank face. Unfortunately, this is not always the case.
I shall give a clear example of a case in which I was involved a few years ago. First, by way of background, I shall try to zoom through 30 years of matrimonial finance in a most simple form—which I hope will please my noble friend Lady Wilcox. The courts initially, when I started to practise, looked at the one-third rule—the division of assets by a third. After that, the deciding criteria were normally the wife’s reasonable requirements, their needs. So one had to go through the expenditure, right down to the postage stamps, to justify the amount of money that one was looking for, in addition to a housing fund, and the surplus was generally kept by the person who earned it. This continued to be the case until the case of White, at the end of the last century or the beginning of this one, when the House of Lords decided that that was not what the statute intended, that needs were not the overriding criteria, and that the principle of sharing the surplus fairly—whatever that might mean—was the correct interpretation of the statute.
The case I refer to involved a huge amount of money, approximately £100 million, accumulated over a 33-year marriage. The facts were not disputed. Every case, before it gets adjudicated in the High Court or in the Principal Registry of the Family Division has to go before a financial dispute resolution, in which the judge sits as a mediator. That judge cannot hear the final hearing, but predicts—or tries to predict—what the outcome will be at the final hearing and encourages the parties to settle. One could call them “supreme mediators”. The judge on this occasion, having heard the facts, decided that the assets should be split equally, 50:50. She was completely deaf to any argument that the husband had made an exceptional contribution, saying that it was much more difficult to live with a genius, control-freak, high-achieving man than with a bog-standard one who had not made that amount of money; and she said that the wife’s contribution in bringing up the family was unquantifiable. The wife was happy with that and the husband was not.
The case went to a full hearing. On exactly those facts, the trial judge decided the man had made an unmatched contribution and awarded the wife 40%. That was a swing of £20 million. It was more than he had in fact offered, but nevertheless, it made it worth while for him to continue and for her not to accept the amount that was offered at the FDR. That leaves the law in a mess, because nobody knows when special contribution kicks in, what it means—it could be something that is not quantifiable in money—and what percentage would be applied to give recognition that someone has made an unmatched contribution. The Bill sorts that out.
Another example of uncertainty is the evolution of prenuptial contracts. When I started off they were considered to be repugnant for public policy reasons: no one should contemplate the breakdown of a contract that was meant to be lifelong. You can see judges slowly changing and shifting until the case of Granatino, which I was involved in and which nobody who practised believed would happen without the intervention of Parliament. We are now left with a situation where prenuptial contracts appear to be pivotal in many cases, but the Act is silent on this. We need help.
Uncertainty of outcome creates an industry for lawyers to litigate. It makes it difficult or impossible to have successful mediation, and the financial costs—not to mention the unquantifiable human cost mentioned by many noble Lords, aggravated often by delay because the courts are too full—are vast and unnecessary. The Bill seeks to limit the discretion of a court and provide direction from Parliament for matrimonial finance. I commend it and thank the noble Baroness, Lady Deech, for introducing it.
Lord Kennedy of Southwark (Lab)
My Lords, this has been an interesting debate and I congratulate the noble Baroness, Lady Deech, on bringing forward her Bill and securing a Second Reading so early in the Session. The Bill proposes to repeal Section 25 of the Matrimonial Causes Act 1973 and replace it with a series of principles that would apply in the determination of applications for financial orders in divorces.
I am not a lawyer, so I have come to the Bill as a lay person. I looked at what marriage is: it is, of course, an agreement by which two people enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. However, when you look carefully, it is a contract—but a very special contract—that comes into force if special formalities are observed and, apart from death, can be set aside or terminated only by a court of competent jurisdiction.
Of course, people enter into this contract because they love each other and want to be with each other and make a life together as a couple, and possibly have children. As an institution, marriage is something that Members on these Benches fully support. We believe that it is one of the bedrocks of stable relationships and society. We are very proud on these Benches that we introduced civil partnerships for gay people some years ago, and that we fully supported the Government last year, in the previous Session, when they decided the time was right to introduce equal marriage for gay people. We did that because we agreed with the Government that marriage is an important institution and that gay people have the right to be treated exactly the same, enjoying the same benefits and facing the same challenges in the society they are equal members of.
I then looked at divorce and what exactly it means. It is, of course, the termination of marital union, the cancelling and/or reorganising of the legal duties and responsibilities of marriage. I found it interesting that, with amendments over time, we are using an Act, which, although ground-breaking at the time, came on to the statute book 41 years ago. That may not be long in the life of legislation, but divorce is a live issue affecting thousands of people every year, as they go through the process either as divorcing spouses or as their children. I reflected on how different the UK is today from 1973.
On these Benches we welcome the debate and believe it is timely. Changes need to be made in the application of financial orders in divorces. However, I cannot at this stage give the Bill my wholehearted support—but, like the noble Lord, Lord McNally, I give it my qualified support. However, with careful debate, identifying the issues of concern, we could be in a position to agree amendments that would enable us to give it our full support.
The concerns can be outlined as follows. Clause 2 provides that either party subject to proceedings for divorce may apply to a court for an order in relation to matrimonial property, for the payment of a lump sum, for the transfer of property or for a pension-sharing order. Legislating on an approach to the division of assets would certainly provide greater certainty for couples who are separating, but we would want to see clear safeguards to protect the economically weaker spouse.
Clause 3 would make prenuptial and post-nuptial agreements binding on the parties, subject to a number of safeguards, and binding agreements could provide couples deciding to marry with the ability to plan with more certainty. I can see the argument that it would bring into full view the potential costs to each party, that significant money could be saved in lawyer and court costs, and that it could take some of the hostility and bitterness out of the process for both parties. I also understand that in many other jurisdictions prenuptial agreements are very common and that in many cases those same jurisdictions have much lower divorce rates. I think that we would want to carefully examine the proposals and test the competing arguments—that, on the one hand, this would undermine marriage and that, on the other, it would strengthen it.
Clauses 4 and 5 propose that the net value of the matrimonial property is shared fairly between the parties. The proposals seek to limit costly litigation by providing a process for asset division and maintenance. They seek to remove, or certainly limit, the role that the court plays in deciding the appropriate division of assets and maintenance, and they limit the ongoing dependence of either spouse on the other as a means of allowing divorcing couples to establish independent lives as quickly as possible.
Our concerns here are that this appears to be a one-size-fits-all approach and that, if there is no place for individual circumstances to be taken into account, after three years when the welfare state is shrinking, the more vulnerable and economically weaker spouse would be left dependent on a shrinking welfare state. I understand that at present courts are told not to make a divorcing spouse dependent on the state where there are other resources to assist them. However, the case for indefinite maintenance orders needs to be looked at and reformed. Maybe an automatic review after a set period of time would be a better way of achieving the aims of the Bill in this respect.
This Bill seeks to deal with important issues and to find solutions to situations that are far from satisfactory at present. I have attempted to highlight some of the concerns from these Benches. However, I believe that, with the Government being fair and reasonable, the Bill could be significantly improved and make progress through your Lordships’ House. As the Opposition, we are here to play our full role in making those improvements.
Like the noble Baroness, Lady Deech, I have an interest in this. I am happily married, although I was getting a few funny looks this week from my wife, my noble friend Lady Kennedy, after getting out books on divorce.
In closing, I bring to the attention of the House that, although it is not proposed here, there is nothing in the rules of the House—I have checked this with the Clerk of the Parliaments—to prevent this Bill or any other Private Member’s Bill being committed to a Grand Committee. A few days in Committee in the Moses Room dealing with the issues that have been outlined today, particularly as highlighted by the noble and learned Lord, Lord Hope of Craighead, might have been a better way of proceeding. It might have produced something for Report that the whole House, or at least a substantial majority of the House, would be willing to support.
The noble Lord, Lord McNally, is right that it is time for Parliament to act on these matters. As the noble and learned Lord, Lord Hope of Craighead, said, action is badly needed and needs to be taken.
The noble Baroness, Lady Deech, is correct to point out that Governments sometimes find issues such as this difficult to deal with. In our recent history, since the Second World War, the Private Member’s Bill has had a very honourable tradition of dealing with these difficult issues, enabling the law to be changed and reformed with government support. However, that requires government support in providing time to work through the issues. We certainly have plenty of time and space in the Moses Room to make this happen if we want to. Before any noble Lord suggests that this Bill would be too controversial to put into Grand Committee, I ask them to reflect on that fact that the Government put the Welfare Reform Bill into Grand Committee. There can be no argument that that Bill raised controversial issues, but the Government saw no reason not to have its Committee stage in the Moses Room.
In conclusion, I again thank the noble Baroness, Lady Deech, for bringing this Bill to the House and I wish her well in her endeavours.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, like all other noble Lords, I thank the noble Baroness, Lady Deech, for introducing the Bill and for enabling the House to debate the appropriate division of financial provision on divorce. She has done the House a great service by prompting this high-quality debate.
The Bill has the highly laudable aim of seeking to assist divorcing couples and civil partners undergoing separation in resolving disputes over the division of property. It is intended both to recognise and enforce prior agreements between separating spouses and substantially to amend the law on financial provision on divorce.
The Bill makes fundamental changes to the law on financial provision on divorce as it has applied for over 30 years. However, it differs from and goes beyond recommendations made by the Law Commission report, which the Government are currently considering. Comments were made about the speed at which the Law Commission has historically proceeded. There is no criticism of the quality of the work that the Law Commission does and I echo the comments made by my noble friend Lord McNally about the way in which a number of Law Commission Bills have been going through Parliament recently.
The Government are not anxious to pre-empt the consideration that is taking place of the Law Commission’s report. In any event, the Government have a number of concerns about the Bill’s provisions and whether these sufficiently safeguard the needs of children and families so as to avoid potential hardship. I will set out these concerns by reference to the current law, the proposals in the Bill and the proposals on matrimonial property agreements made by the Law Commission.
The current law on financial provision on divorce provides a number of important safeguards. This is governed in England and Wales by the Matrimonial Causes Act 1973. Section 23 provides for lump-sum payments and various other forms of financial provision; Section 24 enables property transfers; and further provisions allow for orders for the sale of property, pension-sharing orders and so on.
The courts have a wide discretion as to what orders to make in any particular case and must have regard to the factors set out in Section 25 of the Act. On the face of it, that might seem to be a fair state of affairs. However, there has been a great deal of criticism during the course of the debate that, although the Act provides for all these matters to be taken into consideration, it nevertheless produces uncertainty of outcome—too much depends, perhaps, on the idiosyncrasies of particular judges and fashions—and it does not enable parties to be sufficiently clear on divorce about what is the likely division of property.
However, Section 25, importantly, says that the first consideration of the court is the welfare of any child of the family under the age of 18. Other factors in Section 25 include the income and earning capacity of the parties, contributions made to maintaining the home and children, the financial needs and obligations of the parties, the age of the parties, the duration of the marriage and any physical or mental disability suffered by either.
The noble Baroness’s Bill provides that Section 25 will be repealed and will therefore no longer have effect in relation to orders for financial provision between the parties to a marriage or civil partnership. The Government would be particularly concerned if this had the effect of weakening the protection given to children when their parents divorce. The noble Baroness has indicated that maintenance for children will not be affected, but the Government are concerned that the removal of the welfare of minor children as the court’s first consideration in making financial provision for spouses might cause adverse consequences for children. This would plainly require a great deal of consideration.
Clause 6 addresses the provision for children of the family and provides that the court must have regard to any order for support of a child of the family, the age and health of any child, the educational and financial circumstances of the child and so on, but it does not make the welfare of the child the first consideration of the court, and thus may not provide as much protection for children as the current law. The Government think that the court should look at the needs of the children first and then go on to consider the division of property between the parents.
The Bill proposes that subject to certain exceptions, matrimonial property, defined as is, should be divided equally between the parties. The Government are concerned that this would also be potentially unfair and could cause hardship, particularly for poorer families and for families with children. The noble Lord, Lord Kennedy, referred to the danger of a one-size-fits-all provision. Moreover, reference has been made during the debate to the changes in society since 1973, including the demographic changes described by the noble Baroness, Lady Bakewell, and women’s increasing equality. None the less, as the noble Baroness, Lady Meacher, said, the old models of marriage do still exist in some sections of society and we cannot ignore them when deciding on an appropriate change to the law, if indeed any is needed. In fact, the Law Commission recommended that there should be no change to the law on need in financial provision on divorce.
The Bill provides that periodical payments for spousal maintenance should be for a maximum period of three years and that lump-sum payments and periodical payments should be intended to enable the recipient to become independent of financial support within three years. An absolute three-year limit on maintenance would be similar to the law in Scotland, referred to by the noble and learned Lord, Lord Hope, and my noble and learned friend Lord Mackay. Having looked at the matter, I see that it emanated from a recommendation by the Scottish Law Commission that eventually became part of Scottish law. But, again, the Government are concerned that this could cause hardship and may be inappropriate for many couples. Having to adjust to a new financial reality may take longer than three years, so the Government currently consider that it is better for the court to retain a discretion to provide as it thinks best to meet the circumstances of each individual family.
Lord Davies of Stamford
My Lords, I am listening to the noble Lord with great attention. Would he be kind enough to say what it is that makes circumstances or human nature different in England from what they are in Scotland?
Lord Faulks
I am not altogether sure whether that is a serious question, but of course human nature is not different. The answer is that there is no perfect solution to these difficult problems, as I am sure all noble Lords would agree. The Scottish solution is one that is certainly worthy of great consideration. The current solution in the law of this country is rather different. At the moment we are all concerned to find a solution which best serves the interests of all parties on divorce. Scotland has much to teach us, but it does not have necessarily the perfect answer. We need to learn from the experience in Scotland while accepting that human nature is the same in Scotland as it is in England.
As I say, the Bill provides for matrimonial property agreements to be binding upon couples on divorce. In its proposals on matrimonial property agreements, the Law Commission has strongly recommended that the courts should be able to depart from a matrimonial property agreement where this is considered necessary in order to protect the needs of a spouse or in the interests of any children. The Bill departs from that proposition. In its proposals on matrimonial property agreements, the Law Commission set out a comprehensive list of the requirements necessary to underpin enforceable agreements made prior to divorce. In considering the Law Commission’s proposals, the Government wish to reflect on the sufficiency of safeguards before committing to legislate to make agreements enforceable. We are currently considering those and, as my noble friend Lord McNally said, we will announce our response to them in the very near future. That will be in August—albeit that I heard what he said about the undesirability of reflecting and responding in that particular month.
The Bill’s proposals differ quite substantially from the recommendations made by the Law Commission in the light of really extensive consultation, which included consultation with family practitioners—although I am glad to say that this debate has benefited from the contribution of family practitioners. The proposals in the Bill are substantially different and their likely effects are at least unclear.
I appreciate, as I am sure the whole House does, the noble Baroness’s desire to ensure that financial division on divorce and on dissolution of a civil partnership is made simpler so that people will much more easily be able to estimate what they are likely to receive and be better able to negotiate with each other, and that couples should be able to enter into agreements to determine what they would receive on divorce.
The Government are considering the Law Commission’s report on matrimonial property agreements and how these could be made binding, and will respond in the near future. The report recommends making information available on the likely outcomes of financial applications on divorce—that has been developed during the debate—but recommends that there should be no change to the law governing “need”. The Government are concerned to give proper consideration to these and all the recommendations made by the Law Commission.
The Government recognise that divorcing couples often need help to reach an agreement and should be encouraged to avoid court proceedings. There is unanimity that court proceedings very rarely help in resolution of these disputes. They are far too expensive and the result is usually damaging both financially and, very often, to the future happiness of warring parties and children. The Government are therefore particularly anxious to encourage people to use family mediation and other forms of alternative dispute resolution.
For those who are eligible, legal aid is available for mediation. Under the Children and Families Act 2014, from 22 April this year applicants for financial orders and for financial provision on divorce must attend a mediation information and assessment meeting—
Baroness Shackleton of Belgravia
Mediation and indeed prenuptial contracts are practically impossible unless the outcome has some certainty as to what you are mediating for or what you are trying to anticipate when you are drafting a prenuptial contract. Unless the law is tidied up so that practitioners understand what the outcome would be to prevent the litigation, it is impossible to mediate.
Lord Faulks
I take the noble Baroness’s point but those helping the mediation, albeit that there is inevitably a measure of uncertainty because of the discretion given to the court, by reference to their experience and therefore what judges are customarily doing in a particular case, will nevertheless be able to advise on what is a likely outcome and what is perhaps in the best interests of the parties, and at least assist with the possibility of their not proceeding to court to have the matter heard there.
The application forms for the orders contain details of the provisions for the meetings and potential exemptions that might apply. The Government believe that these requirements will bring a significant number of people to learn about mediation and use it to resolve their disputes. Notwithstanding the point that the noble Baroness, Lady Shackleton, makes about uncertainty, if parties are happy with the outcome, that is of itself a desirable purpose in having this mediation. As my noble friend Lord McNally said, mediation has generally got a good story to tell, and increasingly that is the case.
The Government will not oppose the Bill receiving its Second Reading today but do have reservations about its approach and scope. What, however, I can take back to the department is the very clear—in fact, I think unanimous—view of those participating in today’s debate that the time has come for Parliament to intervene. That of itself is an important message that I can take back to government decision-makers about the future of this field of law. However, we consider that we are already addressing these issues. We shall continue to do so, greatly assisted by all the work that the noble Baroness has done and by the contributions to this excellent debate by all noble Lords.
Baroness Deech
My Lords, it has been a privilege to hear from experienced noble and learned Lords in this debate. In particular, the wisdom of the noble and learned Lords, Lord Hope, Lord Scott and Lord Mackay, has been invaluable, as well as the wisdom of those who have been through divorce or who have been involved in helping others. That means a great deal to me and to all those who think that the law should be reformed.
I am the first to admit that the drafting of the Bill is not perfect. How could I have overlooked the need for agreements to be in writing? Of course, they have to be in writing. But it has been a lesson to me, in that it is one thing to criticise a draft when you have it in front of you, but it is quite another—I could never begin to be parliamentary counsel—to start with a blank sheet and draft a law. Undoubtedly, if the Government give us a fair wind, as I hope they will, professional draftsmen must be let loose on this Bill. It is not something that someone like me can draft exclusively. I am most grateful to all those who have made utterly sensible drafting suggestions. They are all absolutely right. I agree with the noble Lord, Lord Davies, about disclosure of liabilities and all the other suggestions that have been made.
I want to clarify what the Law Commission has done. After some years of work, it has made proposals about prenuptial agreements, but I find it difficult to see how those can stand alone, if they are to be enforced, without reforming the rest of the law. The Law Commission has not completed its work on the sharing of matrimonial property and has stated in the report that it needs another five years of work to do that. It will not advance the cause for most couples just to enact, if that were to be the case, a Bill about prenuptial agreements; one has to tackle the whole thing. No further advice will come from the Law Commission, as it said, for about another five years. It is not as if the Law Commission has come to any firm conclusions about the division or sharing of matrimonial property.
We have to learn from the recent reforms that Scotland has made. England and Wales is the odd man out on this. We have all referred to Scotland, but most of Europe and most of North America have a law which is much more like the law proposed in the Bill than our existing law.
I value the feminist compliment from the noble Baroness, Lady Bakewell, and the moving speech by the noble Baroness, Lady Wilcox. I value, too, the experience brought forward so clearly by the noble and—I cannot call her learned—deeply experienced Baroness, Lady Shackleton. I welcome the contributions from the noble Lords, Lord St John and Lord Grantchester, and others who have spoken. In none of them have I heard anything to undermine the principles and the three pillars of reform that I have put forward: prenuptial agreements being binding, splitting assets and curbing lifelong maintenance. People may think that it should last for three years; others may think that it should last for five. Those are matters for discussion. I simply point out to the Government that the widows’ bereavement allowance lasts for only one year these days and that it is now expected that women should seek work when their youngest child reaches six. The Government have therefore abandoned the notion of the housewife staying at home until the children reach 21 or some such age. The Bill would simply bring our law into parallel with developments around the rest of the world and developments in the Government’s own law relating to benefits and social security.
I therefore hope that the Minister will agree to see me to arrange a way forward for this Bill, because I do not believe that we can wait another five years for the conclusions of the Law Commission when 119,000 couples are getting divorces every year. While I appreciate the sensitivity and generosity underlying the comments made by the Minister, were they to be followed through to their logical conclusion, it would take us back full circle to a law where nobody knew what the outcome should be and where people continued to waste half their combined assets on paying for the litigation and the lawyers involved in the case.
I shall move shortly that the Bill be committed to a Committee of the Whole House, but I welcome the suggestion of the noble Lord, Lord Kennedy, that committal to a Grand Committee, where a lot of small details could be ironed out, might be a sensible way forward, given that I sense a certain consensus that there is a need not only for a broader reform but for a lot of work on the detail. I would welcome such a way forward.
Parliamentary Privilege (Defamation) Bill [HL]
(10 years, 4 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, Section 13 of the Defamation Act 1996 provides that:
“Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings”,
he or she may waive the protection of parliamentary privilege given by Article 9 of the Bill of Rights for the purpose of those proceedings. The purpose of my essentially one-clause Bill is simply to repeal Section 13 of the 1996 Act. I am very pleased that my noble and learned friend Lord Mackay of Clashfern has been able to remain in the Chamber because he will remember, as I do, what happened 14 years ago.
First, I should say what this Bill does not deal with. It does not deal at all with the merits of the Defamation Act, to which my noble friend Lord McNally made such a contribution as Minister. It does not deal with the passionate arguments about press regulations, Hacked Off or any of those matters. It is confined to a very important issue about parliamentary privilege in the context of defamation and nothing more.
If this Bill is read a second time, it may well not have to go any further because the Deregulation Bill that reached this House on Tuesday says in Clause 82—to be read with paragraph 40 in Part 8 of Schedule 20—exactly the same as my Bill. If the Deregulation Bill goes through this House, I will not take the House’s time seeking to push my Bill any further because it will be completely unnecessary.
A bit of background: on 7 May 1996, with my noble and learned friend Lord Mackay of Clashfern on the Woolsack, the noble and learned Lord, Lord Hoffmann, moved an amendment that was addressed to the Neil Hamilton problem. The problem of Neil Hamilton MP was that he sued the Guardian for defamation and a High Court judge decided that parliamentary privilege under Article 9 of the Bill of Rights of 1689 prevented him doing so since it involved questioning proceedings in Parliament outside Parliament. Hamilton did not appeal against that judgment—as I, if I had advised him, would have recommended. Instead, he lobbied for an amendment to be made to the Defamation Bill which had been introduced as a Private Member’s Bill by the noble and learned Lord, Lord Hoffmann.
There was then a strong and well attended debate in which the noble and learned Lord, Lord Hoffmann, made it clear that he was agnostic about his own amendment; he expressed the arguments in favour and against very fairly. Since he was at the time a sitting judge it was obviously a delicate matter. Nor did he reply to the debate. Again, that might have caused some difficulty. Instead, both he and my noble and learned friend Lord Mackay of Clashfern showed their attitude towards the Bill by not voting in the Division called on it. The Bill was carried in this House and the other place and has been on the statute book ever since.
Every commission that has looked at the matter has criticised Section 13 and recommended its repeal. The first example was in the heavyweight 1999 Joint Committee on Parliamentary Privilege chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, which strongly criticised Section 13. In my Private Member’s Bill in 2010, I sought to do what the Bill is intended to do today. The noble Lord, Lord McNally, indicated in debate on the Bill that the Government were thinking about other matters of reform of parliamentary privilege and, therefore, it was unlikely that they would want Section 13 removed at that stage. Indeed, in their draft Bill and actual Bill, they did not do so. The noble and learned Lord, Lord Hoffmann, said at Second Reading of my Bill:
“I am sure that the noble and learned Lord, Lord Mackay of Clashfern, who piloted that Bill through the House, will agree that Section 13 was hastily put together at the last minute, and that hasty reforms tend to cause trouble”.—[Official Report, 9/7/2010; col. 431.]
That was a fair observation of the position.
On Second Reading of the Defamation Bill, Mr Robert Buckland, Member of Parliament for South Swindon, again criticised the section and urged its removal. At that stage, the Government did not have a firm position. Then there was the report of the 2013 Joint Committee on Parliamentary Privilege. It, too, reported that Section 13 creates great damage, and the Government agreed in December 2013 that repealing Section 13 would be the wisest course.
In the debate on a Motion to take note of the committee’s report on 20 March 2013, the noble Lord, Lord Brabazon of Tara, the chairman of the committee, said that he would welcome the repeal of Section 13, the noble Lord, Lord Bew, said that the committee was disturbed by the failure to take action, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said much the same, and the noble Lord the Leader of the House, Lord Hill of Oareford, said that the Government adhered to the committee’s reservations about Section 13. He continued:
“I understand that my noble friend Lord Lester of Herne Hill … proposes to introduce a Private Member’s Bill to deal … with this small but important change. The Government are in principle supportive of this measure to make that clear, and we look forward to seeing if it can make progress”.—[Official Report, 20/3/13; col 344.]
In the other place, in the debate on the Deregulation Bill, Sir William Cash and other Members from both main parties joined together to say that the section should be got rid of. Thomas Docherty, MP for Dunfermline and West Fife, made a strong speech advocating reform.
Everybody, as far as I am aware, agrees that we should now undo what we did 14 years ago and remove that unconstitutional provision. In the original debate, it was condemned by jurists who are, sadly, no longer with us, such as Lord Simon of Glaisdale and Lord Renton, for constitutional reasons. I submit that it is undesirable for a Member of Parliament or Member of this House to be able to pick and choose on an individual basis whether or not to waive parliamentary privilege according to whether it suits them as claimants or defendants in individual proceedings. No other legislature in the world allows that, and this is a day on which one can at last begin to get rid of it. I beg to move.
Lord Prescott (Lab)
My Lords, I offer my congratulations to the noble, Lord Lester, for his Parliamentary Privilege (Defamation) Bill, which I support on the balance of the arguments. As the noble Lord pointed out, it arises from a dispute between a Member of Parliament in the other House and a paper, the Guardian. Therefore, this conflict raises a number of points in my mind about parliamentary privilege.
The first point arises from a decision taken in the courts in dealing with Rebekah Brooks. Before the committee of the House that dealt with the matter, she gave evidence that she or they had been involved in payments to the police. That is a matter of considerable concern but, despite being covered by all the press, it could not be put in the court for consideration because parliamentary privilege prevented it being presented there. That may have been right but it meant that the jury in the court did not get an important point which they should have considered.
Secondly, can the Minister confirm—or perhaps the noble Lord, Lord Lester, can comment on this—whether the defamation case against the media is affected by the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act? With the transfer of costs that were taking place under that legislation, which we recall debating in this House, an exemption was made for the media cases. That was for a number of reasons. Under the old Act the transfer of costs, whether they were to do with the premiums for insurance or the actual costs and success fees, remained the same. Can the Minister confirm whether that is still the case? It is particularly important for many of those who might want to sue for defamation in regard to the hacking cases that are now before the courts. Is that still the position or do the Government intend to repeal that? There was some talk about a repeal perhaps being considered against the background of the introduction of the royal charter, given what Leveson pointed out was a means of dealing with some of these claims. Perhaps the Minister could write to me about that, as there is a complication of things here, but I would be grateful if he could give a statement on that.
Thirdly, is the Minister aware that during the recent Joint Committee on Privacy and Injunctions, which took evidence on super-injunctions and reported to this Chamber, a man called Mr Burby gave evidence to that committee? I protested about that because Mr Burby was involved in the courts for blackmail and harassment. He was under an injunction not to say anything about the case but he simply went to the committee and gave his statement, which was exactly what the court had prevented. The committee then published the whole of the accusations he was making and his case, completely in defiance of the injunction. How was it able to do that? By parliamentary privilege, as on the one hand the committee was able to claim, “We produce under the name and principle of parliamentary privilege”, yet the paper which could not do so under the court injunction then reported everything that he had said, using the report published by the committee, and claimed parliamentary privilege for that.
The only person who really suffered from that lack of the proper application of parliamentary privilege was the woman who was in court trying to protect her name. The court supported her and gave an injunction against this man but she was the one who suffered. The court was not able to protect under what we would normally have thought its role was, simply because Parliament had decided, “Publish and be damned”. That gives no satisfaction to the poor woman before the courts who was trying to secure justice for charges made against her on a matter of harassment and blackmail, so that raised a number of questions in my mind about the use of parliamentary privilege.
I have a couple of other points about the operation of parliamentary privilege. We have a rule in both Houses, or so I thought, about sub judice so that if a matter is before the court we are prevented from speaking about it. No law actually says that; it is apparently up to the Speaker, if he can get in before anybody makes a sub judice statement. There are a number of examples of that. It can almost be raised, although it is not quite right to do so, in regard to the Prime Minister making a statement before they were finished in the court. We have heard the exchanges between the judge and the Prime Minister. It could be argued that it was not made here but in No. 10, but does parliamentary privilege extend there? In regard to sub judice, the judge certainly made a point about politicians—and we can include in that the Prime Minister—going out and making a statement. The Prime Minister judged that he should make an apology that everybody thought was necessary; however, he did it while the case was under way. All politicians were warned about that. I think that both sides ran in a bit too fast, but one certainly led to the other. Was that under the protection of parliamentary privilege? Was it a breach of sub judice?
Recently in the other place there was an MP who decided that he wanted to get something on the record because he had told the press that he was going to say something, even though it was sub judice. What did he do? He jumped up before the Speaker could say anything. He got the relevant few words out before the Speaker said, “Now, now, sub judice”, and the press printed it because it was protected by parliamentary privilege. If you ask, “What is the power of the Speaker?”, you are told, “Ah, you won’t get into debates in future”—that is, the Speaker’s eye will never find you in the Chamber. Still, I am afraid that if someone is looking for a word or two in the papers and wants to abuse the parliamentary protection system, then that is an abuse.
The examples I have referred to show that we have parliamentary privilege. It is an important privilege, provided that it is not abused. It is true that there may be some different interpretations of what I have said here, but it is important that parliamentary privilege is maintained and not abused. There are examples of such abuse through ignorance, through intention or because of a partnership between the press and some Member who wants to get a few lines in the papers and then uses parliamentary privilege to achieve it, and parliamentary privilege was not intended for that. I simply want to raise the issue that this is an important principle that we enjoy, and over my 40 years in Parliament I have sometimes seen it abused in different ways. In the main it has worked properly but, since we are now talking about parliamentary privilege, it is about time that we considered preventing this kind of abuse of it.
Lord Mackay of Clashfern (Con)
My Lords, as the noble Lord, Lord Lester, said, I was Lord Chancellor when the amendment that this Private Member’s Bill seeks to delete was passed. The noble Lord has suggested that it was introduced for a particular case. There certainly was a case that was prominent at the time, but the Privy Council had already made a decision in a case from New Zealand called Prebble that said, in effect, that if a Member of Parliament—I think that at that time he was a Minister—is defamed by someone outside Parliament in respect of something that he has done in Parliament, then there is nothing that the Member can do about it. I felt that that was not particularly fair; on the other hand, it is for Members of Parliament to decide whether they wish to be defamed in Parliament without remedy.
The question was how this could be dealt with in a way that would be fair. The amendment that the Government prepared, and which the noble and learned Lord, Lord Hoffmann, moved, was intended to deal with that problem. It is not a problem only about a past case that the individual involved might have been wise not to pursue; the question is whether it is right that a Member of Parliament can be defamed by people in respect of something that he or she has said or done in Parliament and that, if that happens, he or she has no remedy.
The Bill would bring that about once more. There is no way that a Member of either House of Parliament can do anything if he or she is defamed in respect of what he or she has said or done in Parliament. As far as I am concerned, the Government have decided to accept an amendment moved in the House of Commons to do exactly this. At this juncture, therefore, the Bill from the noble Lord, Lord Lester, seems on the whole not very necessary because the Government have taken this on themselves in their Deregulation Bill. Now that I no longer have responsibility for trying to look after Members of Parliament, I am not concerned; if they prefer not to have this protection, so be it. This Government are willing to accept that, so I shall simply point out that there is that problem but say no more about it. I do not propose to get involved on this point when the Government’s Bill comes along.
Lord Williams of Elvel (Lab)
My Lords, I am grateful to the noble Lord, Lord Lester, for introducing this Bill. I voted against the Hoffmann amendment on Third Reading in May 1996. I did so for two reasons. First, I was persuaded by the arguments used by the noble Lord, Lord Lester, and others that this was tampering with Article 9 of the Bill of Rights and that that should not be done by simply tacking an amendment onto some Bill or other going through this House but should be properly considered. I was less impressed by the conduct of the Government of the day on the procedure. The noble Lord, Lord Lester, has described how it all started, and the noble and learned Lord, Lord Mackay of Clashfern, has confirmed that the noble and learned Lord, Lord Hoffmann, was put up to this by the Government. To have a serving Law Lord, even in those days, putting forward an amendment of extreme constitutional importance seemed slightly exaggerated.
Lord Mackay of Clashfern
I did not say that he was put up. The idea of putting the noble and learned Lord, Lord Hoffmann, up to anything is quite remote from my idea. It struck me that it was a constitutional matter. It was a matter on which the Privy Council, of which he was a member, had made a decision, and in those days it was perfectly reasonable for a Law Lord to move amendments to legislation. I asked him whether he would be willing to consider doing that, and after some time, he decided he would. That is the answer. If I was wrong in asking him, I am extremely sorry, but I do not think I was. It was perfectly reasonable to ask him. I could not do anything more than ask him, and it was for him to decide whether he wanted to do it. He decided to do it, and I well remember the circumstances in which he did it.
Lord Williams of Elvel
The noble and learned Lord has accepted responsibility for the intervention by the noble and learned Lord, Lord Hoffmann. I am quite happy to accept that it was up to the noble and learned Lord, Lord Hoffmann, whether he accepted the Government’s remit.
Nevertheless, to follow the narrative of the noble Lord, Lord Lester, at Second Reading, the noble and learned Lord, Lord Hoffmann, referred to this problem. I shall not go into the basis of the problem because that has been well aired and discussed. I want to consider further the procedure of this House in April and May 1996 and to see just how far this amendment should have been on the statute book in the first place. In Committee, the noble and learned Lord, Lord Hoffmann, moved his amendment. It was discussed and withdrawn. On Report, the noble and learned Lord, Lord Hoffmann, was not in his place to move his amendment. It was then taken over by Lord Finsberg, who moved the amendment, and then the noble and learned Lord, Lord Hoffmann, came in and spoke to it. It then became the Finsberg amendment. Lord Simon of Glaisdale had put down an amendment of a slightly different nature, but the Lord Chancellor of the day quite rightly pointed out that it had to be considered as an amendment to the Finsberg amendment. The problem was that the Public Bill Office had advised Lord Simon of Glaisdale that his amendment was out of order as it was not relevant to the Bill. Indeed, the Lord Chancellor of the day stood up and said that he had to advise the House that the amendment was not relevant to the Bill. Lord Simon of Glaisdale then said that he had not realised that, but he was still going to move his amendment and have it discussed. The Lord Chancellor of the day then said that he was perfectly entitled to do that and that in that sense the advice of the Clerk of the Parliaments was academic.
The debate went on around the Simon amendment. Then Lord Simon of Glaisdale said that he could not divide on the amendment because it was out of order, so he withdrew it. The House then came to the Finsberg amendment, and at the end of the debate on that amendment there was a question of whether there should be a Division. I remember that Lady Seear said that the House was too thin for that. Nevertheless, Lord Finsberg said that he was going to push the amendment. He did so. Nobody went into the Division Lobbies. The House was vacant and, at this point, the then Lord Chancellor, the noble and learned Lord, Lord Mackay, got up and quite rightly said on the second question that the amendment was negatived.
The Companion tells us clearly that when an amendment is negatived, having been discussed and decided upon, it should not come back at Third Reading. Nevertheless, Viscount Cranborne got up after a few days and said that he had been advised that many noble Lords wished to have the matter ventilated again at Third Reading. How and why he had been so advised, because there had been endless discussions on the matter, I know not; if I look again at the noble and learned Lord, Lord Mackay of Clashfern, I may see a little twinkle in his eye. The Leader of the House was advised that he should get up and say, in spite of all that the Companion says, that we should have this again at Third Reading.
That was therefore done. At the end of Third Reading, we had a Division. By that time, the Hamiltonians—if I may refer to them as such—had got their act together, and it was passed. I do not believe that that is a proper and right way to introduce an amendment that may be tampering with Article 9 of the Bill of Rights.
I welcome the noble Lord’s Bill. We have to move on and find some way, if there is a mischief, of doing proper justice to those Members of the House of Commons or Members of this House who have a problem. However, that was not the way to do it, and I hope that we will never repeat that. Of course, what happened was that Mr Hamilton sued the Guardian, lost, and went to join UKIP.
Baroness Hayter of Kentish Town (Lab)
My Lords, it is for me a particular privilege with an element of déjà vu to be standing here. Almost four years ago, on 9 July 2010, as the noble Lord, Lord Lester, said, I was fortunate to make my maiden speech during the introduction of his Private Member’s Bill. The noble Lord, Lord McNally, who is not in his place, was then of course the Minister. My noble friend Lord Prescott stood by me, more or less holding my hand as I spoke. It is therefore nice to be back here for another Private Member’s Bill moved, as usual, so ably and succinctly by the noble Lord, Lord Lester.
It is also for my noble friend Lady Wheeler and myself something of a privilege to sit here—still, perhaps, as the new girls—and hear from the very mouths of the noble Lords who were here and who spoke in that debate of the machinations that took place in the passing of that legislation. It is also a privilege to hear from my noble friend Lord Prescott about some outstanding issues, including that of costs.
The Bill is short, simple and, as well as being necessary, one with which we would all concur and would happily send on its way—except, of course, that it is perhaps a little unnecessary given that, as the noble Lord, Lord Lester, says, on page 203 of the Deregulation Bill we have almost exactly the same words, which have been through the House of Commons. Although I am not in the prediction business, I have a feeling that those words will go through this House without too many difficulties.
There is one little lesson we might take from this, which we have found before with the Dangerous Dogs Act and others: legislation passed either in haste, as the noble Lord, Lord Lester, says, or to answer one particular case, is rarely good legislation. This Hamilton amendment was passed by the previous Conservative Government—disgracefully, as my honourable friend said in the other place—to assist a then Tory MP, who, as has been said, is now a UKIP fundraiser, in a dispute with the Guardian. I also take another lesson from this: namely, that it is probably best not to take on that newspaper. I think of Jonathan Aitken, Mr Coulson and various others.
We on this side are very content that this section of the 1996 Act disappears, and concur with the June 2013 view of the Joint Committee on Parliamentary Privilege that any replacement discretionary waiver would cause uncertainty and a possible chill. I am glad to see the noble Lord, Lord Lester, nodding, because when he gave evidence to the 1999 Joint Committee he said that a replacement might be appropriate. I think we are now all agreed that this simple “thank you and goodbye” is appropriate.
Lord Wallace of Saltaire (LD)
My Lords, we have all learnt some interesting things in this debate, which are no doubt well known to some of us, but certainly not to all of us. The noble Lord, Lord Prescott, raised some important and delicate legal issues on which it is much better for me to offer to write to make sure that we get it entirely accurate, rather than try to answer now.
The Government are, of course, strongly supportive of the reform of Section 13 of the Defamation Act. As has already been said, two Joint Committees have recommended that, and the Government were simply waiting for the appropriate place in a Bill going through the House on to which it might be tacked. The Government agree that Section 13 is at odds with the principle that free speech is a privilege of the House—and of Parliament—as a whole rather than of individual Members. The Government recognise that Section 13 also creates an imbalance whereby one party to proceedings can choose to use the parliamentary record but not the other.
For that reason, following the recommendations of the two Joint Committees, the Government accepted an amendment to the Deregulation Bill on Report in the House of Commons. The Deregulation Bill has had its First Reading in this House; it will have its Second Reading on 7 July, and will move through Committee and Report stages after the summer, when we return in October. It is also for that reason that I express reservations about the Bill before us today. We entirely accept the policy intent of the Bill, but we do not believe that it is necessary given that the House of Commons has already included exactly the same provision in another Bill now moving through Parliament. Provided that noble Lords do not seek to amend the Bill on this issue—I entirely agree with the noble Baroness, Lady Hayter, that that seems extremely unlikely—my noble friend Lord Lester will have secured his aim, and therefore need not detain this House further.
I understand my noble friend Lord Lester’s desire to have a contingency plan given the determination and tirelessness with which he has campaigned on this issue. However, in the light of what I have said, I hope that he can rest assured that Section 13 will be repealed when the Deregulation Bill completes its remaining parliamentary stages.
Lord Lester of Herne Hill
Before the Minister sits down, I will make just two points. First, does he agree that one can never take anything for granted? In other words, we cannot know at this stage what the fate of Schedule 20 will be: therefore, this is a belt and braces approach. Secondly—I think I gave notice of this—can he clarify the Sewel amendment? My Bill says that it applies to the whole of the United Kingdom. The Explanatory Notes to the Deregulation Bill go into the Sewel amendment in various ways. Can he confirm that if the Deregulation Bill goes through in its present form, because this is about parliamentary privilege it will apply to Scotland and Northern Ireland as well as to England and Wales? It is not absolutely clear from the language that that is so; obviously it should be so, but I would be grateful if my noble friend could clarify that.
Lord Wallace of Saltaire
My Lords, on the first point, I entirely take the noble Lord’s belt and braces approach—nothing is certain in life apart from death and taxes, and some people are quite good at getting around taxes, too.
On page 146 of the Explanatory Notes, it states very clearly:
“This repeal forms part of the law of England and Wales and Scotland”,
and Northern Ireland, and,
“will come into force at the end of the period of 2 months beginning with the day on which the Bill becomes an Act”.
I hope that that provides the reassurance that the noble Lord looks for.
Lord Lester of Herne Hill
I am very grateful to the Minister and to all noble Lords and noble and learned Lords who have spoken. Listening to the noble Lord, Lord Williams of Elvel, I thought that what he was saying sounded like Hilary Mantel’s Bring Up the Bodies. It certainly reminded me of a great deal that I had forgotten about those events. It would not be conducive to an entirely harmonious situation were I to add to the noble Lord’s description as I could. The noble and learned Lord, Lord Mackay, said at the time that the Government were neutral about the amendment; those were his words. All I can say is that it was a strange form of neutrality, and seemed so to me at the time. I thought that it was inappropriate for a serving senior judge to have moved the amendment—and I have said so in the past. However, having said all that, I do not think that there is any point now in doing much about what happened then.
The noble Lord, Lord McNally, has criticised me for my lack of arithmetic, because that happened not 14 years but 18 years ago—and he said that I would be hopeless in the Treasury, which is probably true.
I thank everybody. I hope that the Bill will be read a second time.