Infected Blood Compensation Scheme Regulations 2024

Earl Howe Excerpts

Monday 21st October 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I am grateful to the Minister for introducing these regulations, which, as he has explained, fulfil one element of Sir Brian Langstaff’s carefully calibrated recommendations for establishing an infected blood compensation scheme, both as set out in his inquiry report and as amended in the light of the engagement exercise carried out by Sir Robert Francis in June. The regulations we are considering relate specifically to those individuals directly or indirectly infected by contaminated blood, blood products or tissue. Still to come at a future date, as we have heard, are regulations to extend the scheme to those who, in various ways, have been affected by the infected blood disaster; and I shall come back to that issue in a second.

Knowing, as I do, how the detailed architecture of the compensation scheme has been devised, based as it is on Sir Brian’s recommendations, and on the careful and considered advice to Ministers given by Sir Jonathan Montgomery’s expert group, I do not argue for a second with either the appropriateness of the eligibility criteria or the proposed category headings under which compensation is to be awarded. I have some questions, however.

The product of Sir Robert Francis’s engagement exercise was a total of 74 recommendations for modifying the detail of the compensation scheme, as previously announced. Of those 74 recommendations, the Government accepted 69. I have to be candid and say that I was very surprised by how high that number was, since I did not think it likely that either Sir Jonathan Montgomery or my right honourable friend the former Minister for the Cabinet Office would have neglected to take account of any aspect of harm caused by infected blood, or misjudged the appropriateness of the levels of compensation under each category of harm. However, my being surprised is not the same thing as saying that I have any issue with the Government’s decisions on this score: I am quite sure that they will have done the fair and decent thing. In an important sense, the fact that there were so many recommendations for modifying the scheme goes to demonstrate only how worthwhile the engagement exercise was. We can be glad of that.

What nags at me, though, is a worry about complexity. The Secondary Legislation Scrutiny Committee noted this complexity and criticised the Explanatory Memorandum to the regulations for what the Committee saw as a failure to explain clearly either the basis of the compensation scheme or the practical aspects of the compensation arrangements. Those criticisms are regrettable, but to my mind they highlight what I feared might be a consequence of accepting 69 modifications to the scheme, which was that these would serve only to accentuate the complexity already built into the scheme architecture. It is surely axiomatic that the more complex the arrangements, the more likely it is that accurate and timely payment of compensation will be put in jeopardy.

There is one obvious example where this might be the case. The Government have agreed that those people registered with the infected blood support scheme will continue to receive regular support scheme payments for life, running in parallel with compensation payments from the Infected Blood Compensation Authority. On the face of it, having two channels of funding as opposed to a single channel runs the risk of both error and delay in delivering to people the money due to them. What reassurance can the Minister give me on this?

There is another, quite different, example of where delay could occur. Sir Robert Francis’s recommendation 18, which the Government appear to have accepted, was that, under the injury impact award heading, not enough attention had been paid to psychological illness as opposed to emotional distress and anxiety.

Victims and Prisoners Bill

Earl Howe Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

Moved by

[Earl Howe]

That the Bill do now pass.

[Earl Howe (Con)]

My Lords, certain noble Lords wish to speak to this Motion.

[Baroness Brinton (LD)]

My Lords, I am very grateful for the opportunity to raise some issues that have arisen since the publication of the framework and tariffs for the new infected blood compensation scheme on Tuesday afternoon. I thank the noble Earl and John Glen for providing the details to make that possible, and the usual channels for ensuring that the work done so far is not lost but carried through.

However, over the last 24 hours, we have heard from a substantial number of members of the infected blood community who are distraught by the detail that has come out in the framework and tariffs, which seem to be at complete odds with the schemes that have gone before. I have a long shopping list of over 20 points; I will not detain the House with them, but I forwarded them to the Minister in advance of this debate. I will raise two or three as illustrations.

Under the new framework, there will be no distinction between chronic hepatitis B and C in calculating infection. There is no consistency about other diseases; for example, variant CJD has been left out of the new scheme but was included in the old one, as has Hodgkin lymphoma and possibly other cancers. Many people believe that the Government’s proposals still mean that the current schemes will be closed down, leaving them worse off, and that the Government have an incentive to wait longer to pay compensation. They need great reassurance and clarity that that will not be the case, because that is not evident in what was published on Tuesday afternoon.

Can the Government provide a breakdown of how the core route awards examples have been calculated? That would be helpful, even if only to say that there will be further information published online. There are concerns about the illustrative awards being worded as

“for a living infected person”

and not simply an “infected person”. Given that your Lordships’ House has debated a great deal of the wonderful news that estates will also be able to claim, does that mean that estates will be excluded from this part of the scheme?

Noble Lords can see that there is a lot of detail here. A community that thought, on Tuesday morning, that everything was going to be all right are now very concerned that there are a large number of anomalies that need to be corrected. I will not go on, except to say that I am really grateful for all the help that the Minister has given, and I hope that he can provide some reassurance.

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[Baroness Newlove (Con)]

My Lords, I thank my noble and learned friend Lord Bellamy, the ministerial team and everybody across the Chamber from different teams. It has been heartwarming to see everybody trying to get the best result for victims and their families and make sure that the system understands what their journey is about. I also thank the Bill team, whom I have worked with not just on this Bill but as Victims’ Commissioner. I am very proud to be able to work my way round in that role as well.

Most importantly, it was not very nice to have “victims and prisoners” on the Bill, but we are where we are. However, to understand what victims go through is very important. I give huge congratulations on not throwing the baby out with the bath-water in all the politics. This is about people and this legislation is so important. It is a driver for getting other things on to it, whoever gets into power. It is important never to forget that victims have a voice and that voice must always be listened to. That is, as legislators, how we make legislation far better as it goes through these Houses.

I thank the ministerial team and everybody else who has joined in support of these amendments.

[Earl Howe (Con)]

My Lords, mindful that this is somewhat exceptional procedure at this stage of a Bill’s passage, I shall first address the points and questions raised by the noble Baroness, Lady Brinton, to whom I am grateful for the opportunity to provide some clarity on various aspects of the infected blood compensation scheme.

On Monday, as the House is aware, the infected blood inquiry published its final report. By any standards, this was a very significant day. As the Prime Minister said, the report shows a decades-long moral failure at the heart of our national life. So the importance of ensuring that we provide a clear commitment from all sides of the House, as I believe there is, on doing what is right for the infected and affected victims, cannot be overstated. We must progress this legislation and we must continue to engage with the infected blood community on the details of the proposed scheme, ahead of those details being set in regulation. I hope that all parties join me in that sentiment.

I turning to the specific questions raised by the noble Baroness, Lady Brinton. On the issue of interim payments, I reassure her that this legislation still provides for the duty of interim payments to the estates of deceased infected people where payments were not previously received. In addition, a further interim payment of £210,000 is being made to living infected persons in recognition that this will meet the needs of those most likely to be disadvantaged by the passage of time. This payment will be delivered separately by the infected blood support schemes.

The Government are working to deliver these payments to the living infected as a matter of urgency. This morning, the Department of Health and Social Care laid a Written Ministerial Statement to seek a contingencies fund advance to make these payments in England and the Minister for the Cabinet Office met the relevant Health Ministers in Scotland, Wales and Northern Ireland to discuss these operational details. We are working with the devolved Administrations to make these payments swiftly across the UK and I am assured that we share a joint determination to make them as swiftly as possible. Once we have finalised the process with the devolved Administrations, those due to receive these payments will receive details of the date of payment directly from the infected blood support scheme that they are registered with. All interim compensation payments will be deducted from any final payment.

The noble Baroness raised questions on the definition of hepatitis C and related matters. In line with the recommendations of the infected blood inquiry, those infected with hepatitis C will be eligible for compensation, and this includes those whose infection lasted less than six months and those whose infection became chronic—by which we mean it lasted more than six months. Those who had a chronic hepatitis infection that has now cleared as a result of successful treatment will still be eligible to claim compensation.

On the questions that the noble Baroness raised on how the core route has been calculated and the other conditions which indicate hepatitis C progression, let me reassure her that, as announced by the Minister for the Cabinet Office in another place, Sir Robert Francis will now conduct an engagement exercise with the community before regulations to establish the scheme are made, and further details on that will be released shortly.

The noble Baroness also asked why the illustrative tables provide figures for living infected persons only. This is because awards in relation to deceased persons with an infection have a much greater degree of variability depending, for example, on the duration of their illness before they passed away. Publishing an illustrative table for deceased persons, given that awards will differ quite markedly depending on individual circumstances, would not be very helpful.

Compensation with regard to a deceased individual will be distributed to the estate, as the noble Baroness mentioned, and bereaved partners and other affected dependants. The Government are also providing a technical briefing with key representatives of the infected blood community to explain the Government’s proposals, as set out on GOV.UK, and I am confident that will be a useful discussion.

The noble Baroness asked a further question about financial loss incurred by affected dependants of a deceased infected person. Where an infected person has, sadly, died, those who were reliant on them at the time of their death—for example, a partner or child under 18—will receive a financial loss award under the scheme to recognise this loss. On the duration of the blood support schemes, let me reassure the noble Baroness that the establishment of the scheme will not have any immediate impact on the support payments received through the infected blood support schemes and there will be no gap in the payments provided to beneficiaries.

The support schemes are delivered separately in England, Wales, Scotland and Northern Ireland and decisions on individual schemes will be for the devolved Administrations. No one will be worse off under the final compensation scheme than they would have been under existing support schemes. However, the infected blood compensation scheme will compensate for both past and future losses suffered as a result of infected blood.

Once assessed under the scheme, the applicant will be able to choose how to receive their compensation, as either a lump sum or periodic payments. This means that those who value the security of a regular payment will be able to receive compensation in this way. I hope that clarification is helpful.

In the event that the infected blood compensation authority assesses that a person is entitled to less compensation through the compensation scheme than would otherwise have been paid to them through continued infected blood support scheme payments, an additional top-up payment will be provided to bring the compensation they receive up to the level of the support payments. Any top-up payment awarded will take into account other compensation payments that a person has received through the scheme, either in their own right or as an estate beneficiary. This will ensure that no one will receive less compensation through the compensation scheme than they would have received through the payments to which they would otherwise have been entitled through existing support schemes.

I hope my words have provided reassurance to the noble Baroness, and, more widely, to the infected blood community, many of whom have followed the passage of this legislation with close attention. As we have seen throughout the passage of the Bill, and following the announcements this week, there is cross-party agreement to progress work on infected blood, and the Government will continue to deliver what was set out on Tuesday.

As we reach the concluding stages of the Victims and Prisoners Bill, I express my gratitude, and that of my noble and learned friend Lord Bellamy and my noble friend Lord Roborough, to noble Lords on all sides of the House for their amendments, engagement and collaboration throughout the passage of this Bill. Through its stages in this place, between us we have made vital changes to strengthen code compliance measures for victims, establish the body to pay compensation to victims of the infected blood scandal, and bring forward a package of reforms for those sentenced to imprisonment for public protection sentences. I am confident that the Bill leaves this House as a package that truly delivers for victims and the public.

In expressing my thanks to noble Lords, I am mindful of the difficulty of singling out colleagues by name, but I extend particular thanks to the Victims’ Commissioner, my noble friend Lady Newlove, whose expertise has been vital throughout these stages.

Lastly, I express my deep gratitude, and that of my noble and learned friend Lord Bellamy and my noble friend Lord Roborough, to members of the Bill team and all officials in the Cabinet Office, whose hard work and professionalism have been exemplary. Were it not contrary to custom and practice, I would mention them by name.

This is important legislation, and I am pleased that it will make it to the end of its parliamentary passage ahead of Dissolution. I beg to move that the Bill do now pass.

Bill passed and returned to the Commons with amendments.

Victims and Prisoners Bill

Earl Howe Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Moved by

[Earl Howe]

156BA: Clause 58, page 58, line 33, leave out from “legislation” to end of line 36 and insert “(whenever passed or made)”
Member’s explanatory statement
This amendment enables legislation passed or made after the current session of Parliament to be consequentially amended by regulations under Clause 58.

[Earl Howe (Con)]

My Lords, I shall speak to Amendment 156BA and to the three further government amendments in this group. Yesterday’s publication of the infected blood inquiry’s final report has laid bare the devastating tragedy and suffering that far too many people have endured as a result of the infected blood scandal. I trust and hope that the House is assured of the Government’s commitment to compensate victims of this dreadful scandal, and to do so as quickly as possible. Noble Lords will have seen that I have withdrawn government Amendments 162 and 165, which would make early commencement provisions for the establishment of the infected blood compensation authority and interim payments to the estates of deceased infected people. Having done so, I am now proposing to replace those amendments with government Amendment 162AA, the effect of which is to ensure that all provisions under Part 3 will be available to government on Royal Assent. This will ensure what I know is the wish of all noble Lords: that there will be no unnecessary delay to implementation of the infected blood compensation scheme.

This group also contains further consequential amendments—government Amendments 157CB and 157CC—which allow for consequential amendments of other legislation to be made to ensure that the legislation operates as intended. I beg to move.

[Baroness Brinton (LD)]

My Lords, from these Benches, we are very grateful that the Government have agreed to move forward with these amendments. It is extremely important that things move at pace. Obviously, there is always a bit of concern about a regulation that can revoke primary legislation, but given the circumstances, it is completely understandable. Given the lateness of the hour, I will stop there.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the noble Baroness, Lady Brinton. We welcome these amendments.

[Earl Howe (Con)]

I am grateful.

Amendment 156BA agreed.

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Moved by

[Earl Howe]

156C: Clause 59, page 59, line 8, after “Act” insert “made by the Secretary of State, the Minister for the Cabinet Office, the Treasury or the Welsh Ministers”
Member’s explanatory statement
This amendment is consequential on the regulation making powers conferred by my amendments to Part 3 of the Bill and my amendment to clause 58, page 58, line 31.

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Moved by

[Earl Howe]

157A: Clause 59, page 59, line 8, at end insert—
“(2A) For regulations made under section 58(1A) by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (Scottish statutory instruments).(2B) The power of a Northern Ireland department to make regulations under section 58(1A) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).”Member’s explanatory statement
This amendment is consequential on my amendment to clause 58, page 58, line 31.

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Moved by

[Earl Howe]

157CB: Clause 59, page 59, line 8, at end insert—
“(2A) A statutory instrument containing (alone or with other provision) regulations made by the Secretary of State under section (Disclosures by victims that cannot be precluded by agreement) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment replaces my amendment 157 with revised provision to enable a statutory instrument containing regulations under Clause (Disclosures by victims that cannot be precluded by agreement), which are subject to the affirmative Parliamentary procedure, to include consequential provision.

Victims and Prisoners Bill

Earl Howe Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Baroness Hamwee (LD)]

My noble friend Lord Marks of Henley-on-Thames wanted to speak to these two amendments but is unable to be here today, for which he apologises.

In Committee, the Government’s position, which was entirely sympathetic in principle—the noble Earl is rarely unsympathetic—was that the Law Commission is going to consider this in any event, so we should wait for it to do so before pressing the matter further. However, my noble friend says that that is not good enough. There is no reason for a further report before proceeding with the provision of free legal representation and advice for rape victims. If we wait for the Law Commission then there will have to be a further consultation, but that is not necessary—Liberal Democrats do not say that consultations are not necessary lightly—and then there has to be the process of producing a report and then, finally, a Bill. All in all, that is a long delay on an issue on which the principle is uncomplicated and, in any event, conceded. We support these two amendments.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby, and, in her absence, the noble Baroness, Lady Thornton, for Amendments 77 and 78, which, as we have heard, seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation.

I agree that it is extremely important that victims are aware of their rights and confident in those rights, particularly when preparing for trial and when requests for their personal information are made. While it would be novel to provide access to free legal advice and representation for just one type of crime, we recognise that, if there is one category of people who are especially vulnerable, it is victims of rape and sexual offences. We also recognise that victims of these crimes are more likely to receive requests for sensitive personal information as part of an investigation, and that there are calls for independent legal advice to help victims with that situation as well.

That is why the Bill tackles the problem in a different way, by introducing measures designed to minimise requests for information, as my noble and learned friend Lord Bellamy explained in the previous group of amendments. Through the Bill we are placing a new statutory duty on the police to request third-party material relating to victims only when necessary, proportionate and relevant to a reasonable line of inquiry. Following the amendments tabled by my noble friend Lady Bertin, which the Government have accepted, there will also be a requirement that the Requests for Victim Information code of practice must state that the police and other law enforcement agencies should start an investigation with the presumption that requests for counselling notes are not necessary or proportionate.

My noble friend’s amendments also mandate that counselling notes can be requested by police only if they are likely to have “substantial probative value” to a reasonable line of inquiry. This higher threshold will ensure that police are not routinely requesting counselling notes and that the privacy of these victims is respected.

As I have said, we do not want to create a hierarchy of support by granting government-funded legal advice to victims of just one type of crime. Alongside that, there are some complex and sensitive considerations regarding the introduction of independent legal advice for such victims. In particular, we have to be mindful of the role of the victim as a witness in proceedings and avoid anything that might have an unintended impact on the defendant’s right to a fair trial. This concern emerged very explicitly from the pilot scheme run in the north of England. I direct that point particularly to the noble Baroness, Lady Hamwee, and, in his absence, the noble Lord, Lord Marks; we need to take account of the findings from that pilot, which expressed those concerns. A subsidiary but still important point is to consider the potential impact on timeliness as a result of another process being inserted into the system. That was another concern that arose in the pilot.

These are all far-reaching considerations which, I suggest, require expert input before any statutory measures are considered. The Law Commission’s review will consider all these factors, including—the noble Lord, Lord Ponsonby, may like to note—the impact of existing schemes in other jurisdictions. When it publishes its report later this year, its findings and recommendations on independent legal advice will provide us with the robust evidence base that we will need should we wish to go forward and develop the sort of policy proposals that the amendment points us towards. Therefore, it is right for us to wait for those findings.

There is a further point of principle which I ought to flag: it really is not appropriate to place a duty on the Secretary of State in primary legislation to develop policy, especially without any specification of what such proposals should entail and who is responsible for implementing them once they have been developed. Once again, it is much better that we await the Law Commission’s recommendations.

I know how important this issue is to noble Lords opposite, but I hope that I have given the noble Lord, Lord Ponsonby, sufficient pause as regards his original intention to divide the House. There are some good reasons why the amendments should not be pressed, which I hope I have been able persuade him of. I therefore very much hope that he will withdraw Amendment 77 and not move Amendment 78.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am not convinced by the noble Earl. When he opened, he acknowledged that this is an especially vulnerable group and that some cases have a case for novel funding arrangements. He talked about the possibility of unintended consequences of unfair trials—a comment about the pilot funding scheme. In other jurisdictions, such as the family court, there is funding for victims of domestic abuse. If a woman—and normally it is a woman—is a victim or potential victim of domestic abuse, there is funding available in that case as well. Given that this is such a vulnerable group, and since this is an issue of great importance to many Members of this House, I would like to test the opinion of the House on Amendment 77.

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Moved by

[Earl Howe]

90: After Clause 25, insert the following new Clause—
“Child victims of domestic abuse(1) The Domestic Abuse Act 2021 is amended as follows.(2) After section 49 insert—“Notifying schools etc if child is suspected victim of domestic abuse
49A Arrangements to notify schools etc(1) A chief officer of police of a police force maintained for a police area must ensure that arrangements are in place to secure the objective in subsection (2).(2) The objective is that, if a member of the force has reasonable grounds to believe that a child who resides in the police area may be a victim of domestic abuse, any relevant educational establishment is notified as soon as is reasonably practicable except in such circumstances as may be specified in regulations made by the Secretary of State.(3) For the purposes of this section, each of the following is a relevant educational establishment in relation to a child—(a) a school at which the child is a registered pupil;(b) if the child is not a registered pupil at a school—(i) if the child is receiving education at only one educational establishment, that establishment;(ii) if the child is receiving education at more than one educational establishment, such one or more of those establishments as is determined in accordance with the arrangements in place under subsection (1) for the police area in which the child resides.(4) In this section—“child” means a person under the age of 18 years;“educational establishment” means—(a) a school in England or Wales;(b) an institution within the further education sector, within the meaning given by section 91(3) of the Further and Higher Education Act 1992;(c) in relation to England, a 16 to 19 Academy, within the meaning given by section 1B of the Academies Act 2010;“registered pupil” , in relation to a school, has the meaning given by section 434 of the Education Act 1996;“school” has the meaning given by section 4 of the Education Act 1996. 49B Power to extend section 49A to childcare providers
(1) The Secretary of State may by regulations amend section 49A so that the objective in subsection (2) of that section applies in relation to childcare providers, or childcare providers of particular descriptions, as it applies in relation to relevant educational establishments.(2) In this section—“childcare” —(a) in relation to England, has the meaning given by section 18 of the Childcare Act 2006;(b) in relation to Wales, means anything that amounts to child minding or day care for children for the purposes of Part 2 of the Children and Families (Wales) Measure 2010 (nawm 1) (see section 19(2) to (5) of that Measure);“childcare provider” means—(a) in relation to England, a person who provides childcare—(i) in respect of which the person is registered under Part 3 of the Childcare Act 2006,(ii) in respect of which the person would, but for section 34(2) or 53(2) of that Act, be required to be registered under Chapter 2 or 3 of Part 3 of that Act, or(iii) in respect of which the person would, but for section 63(3) of that Act, be able to be registered under Chapter 4 of Part 3 of that Act;(b) in relation to Wales, a person who provides childcare in respect of which the person is registered under Part 2 of the Children and Families (Wales) Measure 2010.”(3) In the italic heading before section 50, for “and orders” substitute “, orders and notification arrangements”.(4) In section 56 (interpretation of Part 3), in subsection (4), after paragraph (b) insert—“(c) section 3 (children as victims of domestic abuse).”(5) In section 87 (regulations), in subsection (6), after paragraph (a) insert—“(aa) regulations under section 49B,”Member's explanatory statement
This amendment requires police chiefs to ensure that arrangements are in place for relevant schools and colleges to be notified if a member of the force has reasonable grounds to believe that a child who resides in the police area may be a victim of domestic abuse.

[Earl Howe (Con)]

My Lords, I will speak on behalf of my noble and learned friend Lord Bellamy. Government Amendment 90 would require the police to notify schools as soon as possible when they have reasonable grounds to believe that a child in their police force area may be a victim of domestic abuse. That means that all children who may be a victim of domestic abuse will receive the necessary support and relevant safeguarding interventions.

Domestic abuse is an abhorrent and sometimes fatal crime, yet it is far too common. It is high volume, high harm and high cost. We fully recognise the devasting impact that it can have on children and young people, which is why we are determined to protect and support better the victims of abuse, including children, and bring perpetrators to justice. The landmark Domestic Abuse Act 2021 acknowledged, for the first time, the appalling damage that domestic abuse can inflict on children and young people and recognised the damage caused to children who see, hear or experience the effects of domestic abuse.

Recognising children as victims of domestic abuse in their own right is a very important step. It helps to ensure that children themselves remain visible in the multi-agency response to domestic abuse. This government amendment will help us take this work one step further. It will legislate that each chief officer of police across England and Wales must ensure that arrangements are in place to notify schools when they have reasonable grounds to believe that a child may be a victim of domestic abuse.

This amendment places the notification scheme, widely known as Operation Encompass, on a statutory footing. It is already in operation across all 43 police forces in England and Wales on a voluntary basis. By enshrining the scheme in law, we can ensure that it is consistently applied across all forces. This will help improve early intervention and enable the most vulnerable children to be safeguarded from the harms of domestic abuse.

This Government are committed to supporting child victims and protecting them from domestic abuse. The amendment will be key in our efforts to do so. I therefore hope that the House will welcome it, and I beg to move.

[Lord Meston (CB)]

My Lords, I support Amendment 90, which provides for the relaying of information to schools. Schools need accurate and prompt information about what is going on. They need to know, and understand, what is happening, or what is suspected. Therefore, I welcome the amendment. It is almost as important as the information going the other way—that is to say, schools relay information to local authorities and, where appropriate, to the police.

I am afraid to say that there are a few cases I have come across where schools, or individual members of school staff, have been reluctant to get involved in child abuse cases, or where there is suspected child abuse. Albeit this amendment provides for the information to pass the other way—from the authorities to the school—if it serves to do anything it may well encourage the passing of information in both directions.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have a genuine question. Of course, I support the amendment, but the wording here is

“if a member of the force has reasonable grounds to believe that a child who resides in the police area may be a victim of domestic abuse”.

If there is a situation where one of the parents calls the police, and there is what is called a “call-out”, that will be recorded, and that sort of information is made available to courts in particular circumstances. But would the child be seen as a potential victim of domestic abuse because the parents have made that telephone call because of a dispute between the parents?

Nevertheless, I support the duty to notify, but I wonder whether the Minister can answer that specific question.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lords who have spoken in support of this amendment. I will deal, just briefly, with the points raised.

In answer to the noble Lord, Lord Ponsonby, a child is considered to have suffered the effects of domestic abuse even if they have not been the direct recipient of that abuse. That is why I made it clear in my opening remarks that it is as much about children who see, hear or experience the effects of domestic abuse as it is about a child who themselves have been on the receiving end of such abuse. It is all encompassing in that sense.

In response to the noble Lord, Lord Meston, and the noble Baroness, Lady Brinton, as I understand it the position at the moment is that the statutory safeguarding guidance, Keeping Children Safe in Education, outlines that all schools and colleges must have regard to their legal duty to safeguard and promote the welfare of children. However, as far as the noble Baroness’s specific question is concerned, I shall need to write to let her and other noble Lords know exactly how far we have reached in the process she outlined. I am afraid I do not have that information with me today.

Amendment 90 agreed.

Victims and Prisoners Bill

Earl Howe Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group is actually more limited than the debate that we have had. It was very succinctly set out by the noble and learned Lord, Lord Thomas, when he gave his three short points in introducing his amendments. Very amusingly, the noble and learned Lord, Lord Garnier, said that the shadow of Dominic Raab should not remain across this Bill. A good way of removing the shadow is with these three amendments here.

The debate has strayed into the next group, but I will not address any comments on that group. As far as the specific proposals in the amendments tabled by the noble and learned Lord, Lord Thomas, of course we agree with them on this side of the Chamber. I noted the point that the noble and learned Lord made about the reason why the chair of the Parole Board would not have a judicial function. It would mean that he or she could be sacked.

I also noted the point made by the noble and learned Lord, Lord Garnier, and other noble Lords, that it is absolutely normal and to be expected that in any number of judicial and quasi-judicial roles, the heads of those particular functions also sit as judges. That is standard practice and it adds confidence to the various institutions that the people who head them are also practising and sitting tribunal chairs or judges.

I look forward to the Minister’s response, but there is a very strong array of speakers against the Government’s proposals, including the noble Baroness, Lady Prashar, who is a former chair of the Parole Board. We have two former Lord Chief Justices, a former Solicitor-General and my noble friend, a former shadow Attorney-General. It sounds like a pretty convincing line-up against the Minister.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for speaking to his amendments with his customary clarity. I hope I can be helpful to him and the Committee in my response.

I have heard unmistakeably the reservations expressed across the Committee about these proposals. Before saying anything else, I undertake to represent to my noble and learned friend the Minister the strength of those reservations. I do so without commitment at this stage but in good faith. It may be helpful to the Committee if I explain where the Government are currently coming from in making these proposals so that noble Lords can understand the issues as we perceive them.

Amendment 169 seeks to remove lines 35 and 36 of Clause 53, which would have the same effect as removing the clause in its entirety. Clause 53 amends Section 239(5) of the Criminal Justice Act 2003, which allows the Secretary of State to make rules with respect to the proceedings of the Parole Board. At the moment, the provision permits rules to be made about how many members deal with particular cases, or that specified cases be dealt with at specified times. This clause adds that the Secretary of State may also require cases to be dealt with by

“members of a prescribed description”.

Amendment 169 seeks to remove that addition.

I will explain briefly why we want to ensure that the Secretary of State can make rules about who sits on parole cases. In the Root and Branch Review of the Parole System, the Government committed to increasing

“the number of Parole Board members from a law enforcement background”

and ensuring that every parole panel considering a case involving the most serious offenders has a law enforcement member on it. We are talking here about murder, rape, terrorist offences and the like.

The Government of course recognise that each and every type of Parole Board member brings with them different experience and skills. That range and diversity contributes to generally effective risk assessments and sound decision-making. However, members with law enforcement experience, such as former police officers, have particular first-hand knowledge of the impact and seriousness of offending. Many will also have direct experience of the probation system, including, for example, licence conditions and the likelihood of an offender’s compliance with such conditions.

Clause 53 enables the Secretary of State to make the secondary legislation needed to prescribe that certain Parole Board panels include members with a law enforcement background. We will, naturally, continue to consider operational readiness before we lay any secondary legislation. I hope that explanation is of help.

[Lord Garnier (Con)]

Am I to draw the inference from what my noble friend has just said that, under the current arrangements, inappropriate members of the board have been inappropriately appointed to particular cases?

[Earl Howe (Con)]

No, not at all, but we think that certain Parole Boards can be strengthened usefully by having additional members with the experience that I have described. I have not implied or, I hope, made any criticisms of Parole Boards that have sat in the past or their decisions.

[Baroness Prashar (CB)]

My Lords, I think that the explanation means that there is no confidence in the judgment of the chairman of the Parole Board to constitute the panels that they think are needed. Why is there a need for direction from the Secretary of State? That is what I fail to understand.

[Earl Howe (Con)]

My Lords, I have heard the arguments. I hope that the noble Baroness will allow that I have already given an undertaking to take those arguments back with me, and I will do so.

Turning, if I may, to Amendments 170 and 171, the first of these seeks to remove the power currently in the Bill which would allow the Secretary of State to dismiss the Parole Board chair on public confidence grounds and would remove the prohibition on the chair’s involvement in individual parole cases. Amendment 171 seeks to ensure that the chair would continue to be permitted to attend and participate in individual parole cases alongside the more strategic role defined by other amendments to the chair’s functions.

Let me begin by confirming that Clause 54(10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. Caroline has led the board well since her initial appointment in 2018, and the Government are very grateful to her for her leadership. However, there might be an exceptional occasion in the future when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, new sub-paragraph (2C) within Clause 54(5) gives the Secretary of State the power to remove a chair from office if it becomes necessary on the grounds of public confidence.

[Lord German (LD)]

What is the term of office? There is a difference between the impact assessment, which says three years, and the pack against which people have applied, which says five years. Which is true? I am happy if the Minister wants to reply in writing.

[Earl Howe (Con)]

I will reply in writing, if the noble Lord will let me.

[Lord Garnier (Con)]

I am sorry that it is very late and I am being tiresome. My noble friend the Minister said that there may come a time or there may be circumstances in which it would be necessary to remove the chairman or chairwoman of the Parole Board. I wonder whether my noble friend could perhaps give me one or two examples of the sets of circumstances in which that might apply.

[Earl Howe (Con)]

A mechanism already exists for the Secretary of State to ask an independent panel to consider dismissing the chair if there are concerns about the postholder’s performance or ability to do the job effectively. That route remains our preferred approach in the unlikely event that a dismissal is required. However, as the board is a high-profile public body, making important decisions on public protection every day, it is right, in the Government’s submission, that the Justice Secretary should have the levers to change the leadership if a situation arose where it was necessary to do so in order to maintain public confidence in the work of the board. It is not a power that any Secretary of State would ever use lightly, and ideally there will never be a cause to use it at all. We are talking here about situations where, for example, there might be conflicts of interest, security issues or confidentiality issues. At the moment, my understanding is that there is no mechanism to dismiss a chair should any issue of that kind arise. The grounds at the moment are quite restrictive.

[Lord Garnier (Con)]

Just to be clear, the Government are proposing that they will need to sack somebody who could be responsible for a breach of confidence, a breach of security, or some other grievous breach; but they will already have appointed this person to that job. Surely the vetting procedure leading up to the appointment would weed out the sort of eccentric people who would leak, or breach confidence, or misconduct themselves.

[Earl Howe (Con)]

That is exactly why I said that it is not a power that it is likely any Secretary of State would use often, if at all.

[Lord German (LD)]

To add to that point, I read out the list of delegations to Ministers about the appointment of the Parole Board chair. I am sure that Members of the House will have realised that it is a pretty extensive power over who gets a job. I wonder whether those delegations have altered. Once again, if the Minister does not know, perhaps he could write to me before we get to Report.

[Earl Howe (Con)]

I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision-making when it comes to considering individual parole cases. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

[Lord Thomas of Cwmgiedd (CB)]

I thank the noble Earl for agreeing to take all these points to the Minister. There are two points I really want to make. First, it is suggested that these decisions are somehow quasi-judicial. I had assumed that two of our most basic rights are not to be locked up and not to have our freedoms curtailed by restrictions. Deciding on those points is judicial; there is nothing “quasi” about it. Therefore, how “quasi” has got into this is, to my mind, a complete misapprehension. I hope it can be corrected, because the protection of your liberty and your freedom to do what you do as an ordinary person is essentially something that a judge must decide and no one else.

Secondly, I hope the Minister—not the noble Earl—will think back to his own experience when he sat as chairman of various judicial bodies. I do not know who the Government have in mind, but it is utterly absurd to think that they could maybe appoint someone who has run a large department store—there may be one of those becoming vacant in a moment—someone who has been head of a particular branch of the Civil Service, a retired physician, or a person who has run a hospital trust. These are the kind of people who know absolutely nothing about the difficulties of making a decision. The chairman of the Parole Board has to do the business, and if that person does not do the business, no one—not the public and certainly not the members of the Parole Board—will have any confidence in them.

I have put the message quite strongly; I think it has been understood. I am sorry to have gone on a little bit longer on these points at this late hour. I must particularly thank the noble Earl for the very courteous and clear way that he dealt with this. I look forward to seeing him be a much better advocate than me in persuading the Minister to make a decision that removes all three of these clauses. I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Earl Howe Excerpts

Monday 20th October 2014 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I have a sense of déjà vu facing the Minister on this matter again, along with the two the noble Baronesses who have spoken to the amendments. It would be sensible for any Minister to listen very carefully to the eloquence of the noble Baronesses, Lady Meacher and Lady Finlay, with their expertise and their long record of dealing with these issues, and the concern that they have expressed for doctors and nurses. I agree with both noble Baronesses and with my noble friend about the need to take action about wilful neglect and bad treatment—obviously, absolutely, of course. However, the Minister needs to answer the points that have been put to him about the effect that the measure might have. I would like to know whether some impact assessment has been made on this proposal and, if so, what it said, because I searched in vain for that information. I also searched in vain for information from anyone lobbying on behalf of the badly paid social care workers, who are also included in this legislation, because they do not have the lobby that the doctors and nurses have, in the shape of the two noble Baronesses. I do not apologise for raising this right now, but it makes me wonder whether statutory regulation of social care workers might help in this matter. It is a shame that the Government have consistently set their face against that.

The government amendments in this group seek to add types of care providers to those already identified, and the types of third-party providers who exercise education or other children’s services functions on behalf of local authorities. Does that include private adoption agencies, free schools and academies? Who does it seek to cover? Looking at the Bill, I cannot see whether that is the case, or not, and I would be interested to know whether it is.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.

The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.

Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.

Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.

However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.

Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.

The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—

[Baroness Meacher]

Can the noble Earl explain what he means by “will not bite”? He seems to be saying that the doctor or nurse will not be found guilty if they have not indulged in a gross breach of duty, but does the noble Earl accept that these doctors and nurses could easily find themselves under criminal investigation even if they have acted utterly properly and with good faith? That is the issue, rather than the issue of where it bites.

--- Later in debate ---

[Earl Howe]

I do not accept that at all. There is already a range of possible offences. If a patient, or a member of the family of that patient, raises a complaint about a particular doctor or nurse in relation to patient care, that complaint could be considered under a variety of headings. It would have to be considered and looked into. The complaint is unlikely in the first instance to home in on this particular offence. The investigation would, however, take place. Our view is that it would then be up to the Crown Prosecution Service to see, first, whether anything bad had happened, and if it had, whether it conformed to this offence or to any of the variety of other offences that are already on the statute book. I do not accept that the creation of this offence on its own would compound the problem that the noble Baroness has raised.

I am sure that she would agree that the vast majority of health and social care staff would never dream of deliberately harming or neglecting people in their care, nor would they try to cover it up. I suggest that that fact, if it became apparent in the earlier stages of an investigation, would be compelling in regard to the attitude taken by the prosecuting authorities. It is perhaps of some comfort to the noble Baroness to note that in relation to the Mental Capacity Act and to the Mental Health Act, there is no evidence that large numbers of cases have come forward. She will know that we have framed this offence to align with the way the offences in those Acts are phrased. Individuals are protected from unfounded allegations and, as I have said, the Crown Prosecution Service will not pursue a case unless it is in the public interest to do so. Even if, let us just imagine, a private prosecution were brought, the person accused has the right to refer the case to the Director of Public Prosecutions, who will close the case down if satisfied that the evidential and public interests tests are not met.

I suggest that there is little that either the noble Baroness or I can do to prevent unfounded or vexatious complaints from coming forward. That is a real problem. Often complaints rest on poor communication—she was right to raise that point—but I suggest that this is not relevant to the matter that we are now considering.

--- Later in debate ---

[Baroness Barker (LD)]

I have listened at considerable length to the arguments put by the noble Baroness, Lady Finlay, and I have also discussed the matter in some detail with my friend in another place Paul Burstow, who was responsible for all the research work that went into this. He worked with the main investigators of Mid Staffordshire NHS Foundation Trust and Winterbourne View. I invite the Minister to look at Clause 20(1)(b), which refers to the duties and failures of care providers. I understand where the fears expressed by the noble Baroness, Lady Finlay, come from, but they may be ill founded. The whole purpose and intent behind Clause 20 was to make sure that never again will front-line staff be jailed for the offences that they committed while the senior managers and directors of those organisations walk free, as happened in Mid Staffordshire and at Winterbourne View. All these clauses are exactly designed to ensure that staff are not hung out to dry and have the effect that when complaints are raised against staff—as they frequently are—they will, at last, be able to cite the shortcomings and failings of their employers as background in their own defences. This is a point that needs to be drawn out of this debate.

[Earl Howe]

My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.

[Baroness Meacher]

I thank the Minister for his response. I do not believe that offences for GPs and other doctors involving competent adults are comparable with offences for front-line staff dealing with incapacitated adults or children. The noble Earl indicated that they are somehow comparable, and that because there has not been a swathe of complaints in relation to the earlier offences, we would not get them here. I think we would and that has not been fully dealt with. I recognise what the noble Earl has said—and certainly recognise what Paul Burstow has said—and do not have concerns about Clause 20 in particular, but there are concerns about this. We have not been able fully to deal with matters today and I hope that we can have a further discussion with the Minister before Third Reading. I understand the purpose of Third Reading but it is very difficult to feel that we can just leave this here when there are so many ends not tied up at this stage.

[Earl Howe]

I am sorry to disappoint the noble Baroness but I cannot undertake to agree that the Government’s position will change on this matter.

[Baroness Meacher]

I understand what the noble Earl is saying but we need to discuss how we take this forward and what we do at Third Reading. With that, I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Earl Howe Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, at Second Reading I made reference to this and other clauses in this section of the Bill. I said I believed that the Government were attempting to,

“close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust”,—[Official Report, 30/6/14; col. 1620.]

although of course these amendments have much wider implications for a wider group of employees looking after vulnerable people, as the noble Baroness, Lady Finlay, outlined. These clauses were added late to the Bill during its passage through the Commons and I do not believe that they were looked at in any great depth there. As I said at Second Reading, it seemed odd to me that volunteers were not also included in these clauses, so I hope the noble Earl can address that in his reply.

We have wonderful people working in the caring professions here in the UK and we have wonderful volunteers helping people, but we must be clear that an abuser who exploits people could easily be in either group. Look at the horror story of the actions committed by Jimmy Savile. He was a volunteer at numerous establishments that were caring for vulnerable people. He was never an employee at any of the hospitals he visited but it appears he had power, influence and keys, and the system in place failed his victims for decades.

There is always the risk of unintended consequences and we need to be very careful that these clauses do not create a culture where healthcare professionals would have their normal, everyday clinical decisions open to criminal investigation, as the noble Baroness, Lady Finlay, and my noble friend Lord Beecham outlined. I do not for one minute believe that that is the intention of the Government but we have to be very careful that that is not what is created or what people believe has been created. So the amendment moved by the noble Baroness, Lady Finlay, is very welcome as she attempts to bring clarity to the issues and talks about,

“a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”,

that,

“causes the avoidable death of, or serious harm to, that individual”.

For the same reasons, my noble friend Lord Beecham and I tabled Amendment 33, which makes it clear that clinical medical judgment exercised by a registered medical practitioner is excluded.

These are very serious matters. I hope that the Minister can address the points that I have made about volunteers and the whole question of the sanctions being applied only to the most serious cases, as well as those about harming transparency and improving excellence in care made so well by the noble Baroness, Lady Finlay, and my noble friend Lord Beecham.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Finlay, and both noble Lords for tabling these amendments, which give me the opportunity to explain the Government’s thinking behind these important new offences of ill treatment or wilful neglect.

The Government are clear that the ill treatment or wilful neglect of users of health or adult social care services by an individual paid to provide those services is never acceptable. It is for this reason that we accepted the recommendation of Professor Berwick and the National Advisory Group on the Safety of Patients in England to introduce a new, clear and specific criminal sanction for those guilty of ill treatment or wilful neglect. However, Professor Berwick’s original recommendation proposed that the offence should apply only in the most egregious cases, where the ill treatment or wilful neglect caused “serious harm or death”—in effect, a harm threshold. Amendment 30 would create a similar threshold by requiring both a “serious and substantial” departure from a care worker’s duty towards the victim and that the conduct must cause serious harm or avoidable death.

When we were developing these new offences, we gave careful consideration to these very issues. For us, it raised a number of difficulties. For example, if you set a harm threshold, you are effectively saying that any ill treatment or wilful neglect that fails to cause sufficient harm to meet that threshold can be tolerated. Similarly, a situation could arise where two people are subjected to the same behaviours by the same care worker with the same intent, but one is much more seriously harmed than the other. I cannot see how it can be fair that the lesser harmed victim cannot have the protection of the new offence simply because they have been fortunate enough not to suffer really serious harm.

We exposed these very concerns in our consultation on the formulation of the offence earlier this year. The overwhelming majority of those who responded supported our proposal that the offence should focus on the conduct of the care worker, not on the outcomes for the victim. The way in which the noble Baroness’s amendment is framed puts the focus of the offence back on to outcomes. Someone could be subjected to wholly unacceptable ill treatment or wilful neglect but the perpetrator could have a defence if they could show that their conduct did not meet the “serious and substantial departure” threshold of the noble Baroness’s amendment, that the harm suffered was not sufficiently serious or that the victim’s death was unavoidable.

I also have some concerns about that phrase “serious and substantial”. Guaranteeing an objective and consistent interpretation seems to be fraught with difficulty. I fear that care workers could find themselves with less certainty about when the offence might bite, rather than more.

This brings me to the other point I want to make in respect of Amendment 30. It relates to the imaginary case study that the noble Baroness put before us. We recognise that it is important that there should be clarity around the types of behaviours which will be captured under this offence, and I understand the concern expressed by some that, without this, there is a risk that care workers could be less willing to be open and honest when things go wrong.

There are a number of issues to consider here. First, and most importantly, it must be remembered that the underlying premise on which the offence is predicated is that any neglect must be wilful; that is, deliberate, or else completely reckless as to whether the conduct will cause harm. In the case of ill-treatment, the courts have interpreted this as being ill-treatment that was intentional or reckless. I can assure the Committee that this is in practice a high bar to get over. Demonstrating that that is the case to the standard of proof required in criminal law will not be easy. Nor do we want it to be. We know that the vast majority of care workers would never dream of setting out to ill-treat or neglect those in their care. In the example given by the noble Baroness, a balancing of priorities is taking place. The offence would not cover that situation, but accidents and genuine mistakes do happen, and we have formulated the offence to make it clear that such situations will not be captured by it, no matter how serious the outcome may be for the patient or service user. Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence.

Other safeguards will be in place, besides the fundamental protection given by the formulation of the offence itself. As with a whole range of criminal offences, the Code for Crown Prosecutors means that a public interest test will have to be met before a prosecution is brought. Moreover, even in the unusual event of an alleged victim or their family deciding to pursue a private prosecution, the care worker has protection. They can exercise their right to refer the case to the Director of Public Prosecutions for scrutiny, who will have discretion to take over the case and close it down.

With regard to Amendments 31 and 32, I am aware that in his remarks at Second Reading the noble Lord, Lord Kennedy, raised the issue of whether the ill-treatment or wilful neglect care worker offence should include volunteers. We considered that very carefully during the development of these offences. Indeed, we again addressed the issue directly in the consultation in March. We know, of course, that it is not only formally employed care workers who can ill-treat or wilfully neglect those in their care. Sadly, it can happen in many situations, as the noble Lord rightly pointed out, but his amendments would bring a vast number of people within scope of the offence because “volunteer” has a wide interpretation. Family carers; people who provide assistance to friends or neighbours by, for example, taking them shopping or to medical appointments; people who help out in nursing homes at meal times; volunteer patient transport drivers—all such people, and more, would be caught by the amendments.

Our view is that there is a significant difference between those employed to provide these services and those who do so voluntarily. Paid arrangements give rise to a formal obligation to provide services to a reasonable standard. That represents a significant and important difference from informal arrangements, where there is no element of prescribed obligation. I am sure that it is not the intention to make subject to the criminal law all those people who, from the goodness of their hearts, are willing to give of their time and effort to help others.

I would add that we do already have in place arrangements to provide safeguards in such situations. For example, the Care Act 2014 includes provisions explicitly relating to the powers and duties of local authorities to assess and meet the needs of informal carers, such as friends and family carers. Moreover, where an individual is volunteering in, for example, a day centre or nursing home, there are nowadays statutory duties on the operators of those facilities to carry out appropriate checks on the suitability of the individual to do that work and ensure that they receive training in health and safety, safeguarding and other procedures necessary to provide protection for the users of that service. It is no longer the case that someone could just walk in off the street, offer their services and come immediately into contact with vulnerable patients or service users.

It is the Government’s view that these arrangements provide adequate safeguards in these specific circumstances in a far more proportionate way than applying this offence would do. The latter would also risk putting people off volunteering for fear of prosecution, however unlikely that prosecution might be in practice.

I turn finally to Amendment 33. Although I can readily understand the motive behind it, I have to say that I cannot agree that it is necessary, even on the “for the avoidance of doubt” basis which the amendment adopts. We have been clear from the outset that matters involving the exercise of informed clinical judgment by any healthcare professional, not just registered medical practitioners, should be outside the scope of these ill-treatment or wilful neglect offences. We addressed this explicitly during the consultation exercise and the offences have been formulated to ensure that this is the case. I reiterate my earlier remarks about the key element being that of wilfulness. There has to be intent to ill treat or neglect, or recklessness as to whether the perpetrator’s actions or omissions will cause ill treatment or neglect, for the offence to bite. For a surgeon making decisions about the relative priorities of two patients or the best course of treatment for a particular condition, the implications and effects of their decisions will be uppermost in their minds. They will be all too aware that their decision may cause further delay or discomfort in the short term, even though the longer-term outcome may be better, but in taking these sorts of decisions healthcare professionals are not deciding deliberately to ill treat or neglect. They are taking decisions in what they believe to be the best interests of the patient, taking into account other priorities. I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence.

[Lord Beecham]

I can quite understand the Minister saying that he cannot see that. However, is there not a danger that members of the public will not see it that way? If this amendment were to be adopted, it would send a clear message to the public that clinical judgment is outside the scope of the general provision. Is that not something worth achieving? I cannot see that it costs anything in terms of the Government’s policy and its implementation. However, it sends a clearer signal not just to the profession but to those who might feel that they should have recourse to the law when it has resulted from clinical judgment. It would be better to make that clear from the outset in the legislation.

[Earl Howe]

I come back to my earlier point: the bar is set high here because wilful neglect has to involve ill treatment that was intentional or reckless. The courts have traditionally interpreted that in a very narrow way, which is as it should be. I say this again and on advice: we do not believe that a doctor exercising his or her clinical judgment would fall within the scope of that offence.

I should make a couple of other points here. Amendment 33 refers only to “a registered medical practitioner”. The implication of that would be that other types of healthcare professionals exercising clinical judgement would not be excluded because they are not specified. So, for example, a triage nurse working in an A&E department would have very reasonable cause for concern about the kind of clinical judgments that they have to make perhaps not being outside the scope of the offence, because they are not explicitly mentioned in the Bill. Clearly, I would not want to create that kind of confusion and I am sure that the noble Lord would not either.

I hope that I have been able to demonstrate that the Government have worked hard to ensure that a whole range of issues and concerns were properly considered in the formulation of the new offence of ill treatment or wilful neglect. In particular, I hope that I have been able to reassure the noble Baroness and the noble Lords on their specific concerns and that she will now feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am grateful to the Minister for such a full response to the amendment that I moved and to the other amendments. For the record, I make it absolutely clear that ill treatment or neglect is never, ever acceptable by anybody. I am certainly not trying to make wriggle room for anybody. It is clear in the way that this debate has gone that it is about the intention of the worker, and if they were badly intended—if they had mal-intent—then they should duly be picked up and indeed suffer the consequences of the harm that they may have inflicted.

I hope, though, that the Minister will consider that the guidance that goes with this needs to set out clearly the issues that we have debated today, as well as the point raised just now by the noble Lord, Lord Beecham, which relates to all the clinical professionals. As the Minister has just said, it is not just doctors; it will be nurses, physiotherapists and lots of others who will be exercising clinical judgment. There is something important about being clear that clinical judgment has an important role because of the message that it gives to the public, who may feel vexatious against the outcome of a well intentioned clinical judgment that, for whatever reason, just did not go right—not even that a mistake was made but just that the disease process, their expectations and the way that they interpreted the communication have perhaps been mismatched.

I hope that we might be able to have further discussion with the Minister about the issues around this. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, I will be brief. This amendment was tabled by me and my noble friend Lord Beecham. It seeks to close what we thought was a loophole in the clauses that the Government introduced here. It seeks to introduce a criminal liability on a director of a corporate body or an incorporated association for failing to sack employees who have committed an offence of ill treating or wilfully neglecting an individual in their care. That seemed to us to be a serious omission on the part of the Government. As I said in my contribution on the previous group, these clauses did not get a huge amount of scrutiny in the other place; they were added very late. We think that this is a serious omission and that the Government should look at it very carefully. The amendment is a probing one, designed to get a response from Government at this stage. We may want to come back to it on Report, but I would be grateful if the Minister could give us his views on this. I beg to move.

[Earl Howe]

My Lords, I am grateful to the noble Lord for giving me the opportunity to deal with this important issue of individual liability, where a care provider offence has been committed. Professor Don Berwick was very clear, in his recommendation on the creation of the offence, that it should apply to organisations providing care as well as to individual care workers. We completely agree with that principle; however, we have deliberately formulated the offence in respect of care provider organisations somewhat differently from the care worker offence, for two reasons. First, we wanted to try to ensure that the care provider offence could be applied to an organisation as an entity in its own right, without the need to first identify and convict an individual of sufficient seniority within the organisation’s management hierarchy so that they could be seen as the controlling mind of the organisation. That is why Clause 18 is modelled on the corporate manslaughter offence. Secondly, we wanted to ensure that the focus of the care provider offence was unequivocally on the provider organisation as a whole. We deliberately chose not to create a situation where attention could be deflected on to an individual such as a director when the offence had been committed by the organisation’s board acting as an entity, not as individuals. The intention is that the care worker offence will apply in respect of individuals, with the care provider offence capturing organisational failings that have allowed ill treatment or wilful neglect to occur.

It seems to me that this amendment would risk creating exactly that possibility of deflection away from the organisation by specifying that in certain circumstances an individual director of a care provider organisation is to be treated as a care provider in their own right, irrespective of the activities of the remainder of the board. Moreover, given the way the care provider offence is structured, I have to say that I think there would be some difficulties in making out the elements of it in relation to an individual director. For example, I fear that the historical difficulties in extrapolating the existence of a relevant duty of care from the organisation as a whole to an individual director could also arise here, and if that duty cannot be demonstrated then the offence cannot apply in any circumstances.

Nevertheless, I reassure the noble Lord that it is the Government’s policy to strengthen corporate accountability in health and social care and to hold individuals to account where they are responsible for failings in care. It is for this reason that we are introducing a fit and proper person test for directors of care providers. Directors will also be liable for the care worker offence when committed by them. Also, Clause 22(2) to (5) clarifies that a conviction for the care provider offence would not preclude an organisation being convicted for a breach of the proposed new fundamental standards for health and social care or a health and safety offence on the same facts, if this were in the interests of justice. It would therefore also be possible to convict an individual on a secondary basis for such an offence under provisions such as Sections 91 and 92 of the Health and Social Care Act 2008 or Section 37 of the Health and Safety at Work etc. Act 1974. This ensures that existing liabilities are not reduced as an unintended consequence of the new offence.

I am afraid that it seems to me that the noble Lord’s amendment would be in direct contradiction of the Government’s position on how the care provider offence should be applied. I am therefore unable to accept it. I hope that the explanation I have given will enable the noble Lord to withdraw the amendment.

[Lord Kennedy of Southwark]

I thank the Minister for his explanation. I shall reflect on it. My only intention is to protect people and staff and that, where people or companies have done wrong, we deal with them properly. The points that he outlined may provide sufficient protection and guarantees. I beg leave to withdraw the amendment.