Victims and Prisoners Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Committee stage
Monday 26th February 2024 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group of probing amendments, which have the aim of ensuring decent and necessary payments to all those bereaved in this disastrous scandal, has given the Committee the chance to consider the appalling plight of the victims of the infected blood scandal.

We welcome Clause 40, in particular Clause 40(3)(a), which says that:

“In exercising its functions, the body must … have regard to the need of applicants for speed of provision, simplicity of process, accessibility, involvement, proactive support, fairness and efficiency”.


It is only to be hoped that the Government live up to the promise of that clause in future, because they have signally failed to do so in the past.

If this Bill has taught us anything, it is that all victims of crime, major incidents and appalling and deeply shocking medical errors such as this, as well as other administrative disasters such as the Post Office Horizon scandal, have so many needs that resemble each other. We need early admissions of responsibility and culpability. We need government and administrative bodies to face facts. We need to ensure that victims have early access to the services and support they need and that such services and support are in practice provided in full and in good time.

Of course, one of the tragic aspects of this scandal is that the need for speed is particularly severe. It is worth reminding ourselves that, since Sir Brian Langstaff’s interim report of April 2023, more than 70 victims have died. The noble Lord, Lord Bichard, gave evidence to that inquiry, as did the noble Lord, Lord Owen. Both spoke eloquently of its conduct, and it is worth remembering the conclusion of the noble Lord, Lord Bichard, that the state let people down and should accept responsibility. He spoke of defending the indefensible, and the noble Lord, Lord Horam, echoed his words. Delaying compensation is denying responsibility. As all noble Lords who have spoken have said, there is no reason at all to wait any longer—certainly not until the Government have digested at length the contents of Sir Brian’s final report. Any such delay would be a travesty of Sir Brian’s principal call, which was for urgency.

Sir Robert Francis’s recommendations, in his report in June 2022, on the way that compensation should be handled, along with Sir Brian’s report, now need urgent implementation. It is to be hoped that the work of the expert panel—established under the chairmanship of Jonathan Montgomery, who is the chair of Oxford University Hospitals NHS Trust, which was not a mile away from involvement in the crisis—does not delay or water down the recommendations of the two reports. It is right to say that the campaigners are deeply concerned, as the noble Baroness, Lady Campbell, stressed.

In opening the debate, my noble friend Lady Brinton and the noble Lord, Lord Owen, pointed out the strength and determination of this very long campaign. We mourn Lord Cormack, whose involvement in the campaign was also extensive and long lasting.

The noble Lord, Lord Owen, spoke of the difficulties facing doctors, and the lack of political will needed to ensure self-sufficiency in blood products in this country. We can only hope that the noble Lord’s optimism in expecting the Government now to react quickly and finally, following the report due in May from Sir Brian Langstaff, is justified. My noble friend Lady Featherstone and the noble Baroness, Lady Campbell, added their accounts of personal tragedy, and thereby movingly added to the demand for urgency.

We know that the Horizon case led to definitive action only following ITV’s television drama. It should not be the same with the infected blood scandal, but we understand that ITV has commissioned Peter Moffat to write such a drama, so perhaps public opinion will come to the rescue once again. The burden of my speech, and the speeches of all noble Lords who have spoken today, is that this should not be necessary in a civilised and compassionate democracy.

[Earl Howe (Con)]

My Lords, in arriving, as we now have, at Part 3 of the Bill, I should like to begin by thanking all noble Lords who have spoken so powerfully and movingly on a set of events which many regard as constituting the worst disaster in the history of the National Health Service. The story of those who received infected blood as part of their NHS care and treatment is one of unimaginable suffering and terrible tragedy over more than four decades. It is a story that is still not yet over. The victims’ suffering has been made even worse by an absence of full justice for those individuals and, alongside that, a failure to reach—as far as may be possible—a sense of closure.

The official public inquiry currently under way, under the chairmanship of Sir Brian Langstaff, is the start of delivering the justice that is needed. The inquiry has been informed by the expert work of Sir Robert Francis, and Sir Brian has so far published two interim reports on his findings, with his final report due on 20 May. Meanwhile, in the other place, Clause 40—as it is now—was added to the Bill to speed up the delivery process.

The Government accept the will of Parliament that arrangements should be put in place to ensure, as far as reasonably practicable, that the victims receive justice as quickly and efficiently as possible. Therefore, my desire—and, I trust, that of all noble Lords—is to see the Bill added to the statute book as soon as is reasonably practicable. The Government are well aware that every passing season sees more suffering, death and bereavement. We are therefore eager to avoid more needless delay.

Ministers have already taken action and given a number of undertakings. First, we have promised that within 25 sitting days of Sir Brian Langstaff’s final report being published, we will make a Statement to Parliament setting out the Government’s response. The period of 25 days is not a target but a deadline. We will issue our response as soon as we possibly can.

Secondly, in response to a recommendation from Sir Brian, we have made interim payments amounting to £440 million to infected individuals or bereaved partners registered with existing infected blood support schemes.

Thirdly, in readiness for Sir Brian’s final report, we have appointed Sir Jonathan Montgomery to chair an expert group whose remit is to advise the Government on some of the legal and technical aspects of delivering compensation. I realise that some have questioned Sir Jonathan’s appointment because of his former connection with Bayer. Noble Lords may wish to note that Sir Jonathan ceased to be a member of the Bayer bioethics council on 31 October 2023. The council was an independent advisory group which had no role in the day-to-day operations of the company. It has had no executive power in the operational business of Bayer.

I emphasise that nothing in the work of the expert group is intended to cut across the conclusions of the inquiry or the advice of Sir Robert Francis—quite the opposite, actually. The expert group is there to enable Ministers to understand certain technical issues and thus enable decisions to be taken more quickly.

On the amendment passed by the House of Commons, which we are now considering, noble Lords will understand that the provisions of any Bill need to be legally coherent and should not cut across the integrity of the statute book. There are two principal defects with Clause 40: first, its coverage does not extend to the whole of the United Kingdom. The Government are clear that infected blood is a UK-wide issue. For that very reason, the infected blood inquiry was set up on a UK-wide basis. In March 2021, we announced uplifts to achieve broad financial parity across the UK’s infected blood support schemes, increasing annual payments to beneficiaries across the country as a whole. Maintaining a commitment to parity across the UK is extremely important.

We also need to agree on a set of arrangements that are workable and, above all, work for victims. It is therefore essential for the UK Government to engage with all the devolved Administrations with those aims in view. That is what we are now doing. My right honourable friend the Minister for the Cabinet Office met counterparts from the Welsh Government, Scottish Government and Northern Ireland Executive earlier this month to discuss this matter; those discussions will continue.

The second principal defect of Clause 40 is that in proposing the establishment of an arm’s-length body, as Sir Brian recommended, it does not also propose any specific functions for that body. The Government’s intention, therefore, is to bring forward an amendment on Report which will correct these two deficiencies and add further standard provisions to ensure a more complete legal framework when setting up an ALB. I plan to engage with noble Lords in advance of Report to discuss the content of the government amendment once it has been drafted.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

The Minister mentioned that there will be government amendments on Report to address the deficiencies in Clause 40 that he has identified. Does he envisage having the opportunity, between now and Report, to prepare amendments to address some of the other legal impediments—for example, to widening the cohorts—that he has identified? That could accelerate clarification and speed up the process.

[Earl Howe (Con)]

I anticipate using every opportunity available to engage with noble Lords on not only what the amendments will comprise but what we intend to do thereafter. As the noble Lord will appreciate, there is a wealth of regulations in this space. I venture to say that quite a lot of the detail of the arrangements will be contained in regulations, which will be laid as soon as possible. To the extent that I can go into detail on what those regulations will contain, I shall be happy to do so, but I hope that the noble Lord will understand that I am not in a position to do so today.

Victims and Prisoners Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Committee stage
Tuesday 13th February 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, as the noble Lord, Lord Wills, so ably explained, this group of amendments covers a number of issues: the appointment of the standing advocate, the function of the standing advocate, the appointment of additional advocates, and a review of the scheme’s effectiveness.

I will deal first with the noble Lord’s Amendment 123A, which would set a duty on the Secretary of State to appoint a standing advocate within one month of Royal Assent. The Government entirely share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. However, we have a few concerns about the proposed amendment.

First, Part 2 of the Bill will be commenced by regulations made by the Secretary of State. That is the appropriate commencement mechanism for this type of provision. Secondly, it has always been our intention to run a fair and open competition for the office. Obviously, there is due process involved in that, which necessarily occupies a certain amount of time. Thirdly, as I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to making the appointment, and this process will also take a little time.

If the Government were to proceed as the noble Lord suggested, it would necessitate a direct appointment by Ministers. Of course, that is theoretically possible, but such appointments are normally used to address a short-term need and are typically for posts that last 12 to 18 months or something of that sort. This point also relates to the noble Lord’s other amendments on the appointment process, which would require the Secretary of State to obtain the approval of a relevant Select Committee and to hold a Motion for resolution before making the appointment, or to give an Oral Statement if it is refused.

It may help if I outline the Government’s current intentions for the recruitment process. Given the nature of the role and the tireless efforts and campaigning of so many people—not least the noble Lord, but also other parliamentarians, Bishop James Jones and, in particular, the Hillsborough victims and their families—for the establishment of the IPA, it is of the utmost importance that we get this right. On that basis, the Government intend to recruit the standing advocate through the public appointments process.

To remind noble Lords, theprocess is operated under the Governance Code on Public Appointments and is regulated by the Commissioner for Public Appointments. The scheme will ensure that the competition for the role is fair, open and transparent. It will provide the opportunity for anyone with the appropriate skills and experience to apply and help to ensure that we will have as a diverse a range of candidates as possible to choose from.

I would also like to reassure the noble Lord, Lord Wills, that the public appointments process already provides the opportunity for the appropriate Select Committee to interview a proposed candidate. If it would be helpful, I am open to discussing this point further with the noble Lord. Indeed, it is within the discretion of Select Committees to encourage potential candidates to apply. They can also hold a statutory officeholder to account once in post, as the noble Lord well knows. Additionally, we have also taken the step of ensuring, within this legislation, that the IPA will be subject to the scrutiny of the Parliamentary and Health Service Ombudsman, which adds a further layer of accountability. Taken together with the pre-appointment scrutiny that the public appointments process already affords Select Committees, it is the Government’s belief that no changes to the process are required at this time.

I now turn to Amendments 123D and 124B. These add a specific mention so that the clauses apply only when additional advocates are appointed. I do not think these amendments are necessary; the legislation as drafted already covers the point the noble Lord is trying to make. Ultimately, the clauses in question are intended to allow the standing advocate to provide a leadership function to any additional advocates appointed alongside them. Where no additional advocates are appointed, the leadership function would not be needed or executed. These amendments are therefore not necessary.

Amendment 124A in the name of the noble Lord, Lord Wills, seeks to grant the standing advocate the right to request all the relevant powers to establish an inquiry; to impose a duty on the Secretary of State to answer any requests from the standing advocate within two weeks; to impose a duty on the Secretary of State to make an Oral Statement to the other place should they refuse any request; and to impose a duty on the Secretary of State to demonstrate that they have had regard to various factors while considering the public interest. The noble Lord, Lord Marks, asked me to clarify the Government’s policy intention in this area. The Government have always been clear that the purpose of the IPA scheme is to support victims of major incidents, rather than undertaking their own independent investigations. Our position remains unchanged. This amendment would run counter to the policy intention.

The noble Lord, Lord Wills, quoted the words of my noble and learned friend Lord Bellamy in explaining the rationale for the Government’s approach. Briefly, the Government are of this view because they believe that giving the IPA investigatory powers could conflict with the work of other investigative authorities and risks duplicating or undermining them. I acknowledge all that the noble Lord said about the intended effect of his amendment. I am sure that he will know that, in recognition of the desire here and in the other place to see the IPA having a greater role in reviews, the Government announced additional functions for the standing advocate. The standing advocate’s functions, as set out in Clause 29, give it the ability to advise the Government on the most appropriate form of review mechanism in relation to a major incident and what the scope of that review should be. It will also have a vital role in relaying the views of victims in relation to this decision. The Government believe that this is the most appropriate form of involvement for an advocate to add value, without duplicating or undermining other processes.

While I obviously regret that the noble Lord and the Government are not at one on this issue, I hope he will welcome the shift that the Government have made. I did not close my ears to what he said; I also listened carefully to my noble friend Lady Sanderson. I would of course be happy to discuss this further with him and my noble friend in the coming weeks, as I know would my noble and learned friend Lord Bellamy. For now, I hope that the noble Lord will not feel the need to move the amendment.

My noble friend Lady Sanderson asked me what engagement has taken place with victims in shaping the role of the advocate. I can tell her that, since March, we have written to victims and given them an inbox, and we are happy to keep those conversations going while operationalisation continues. We have also met the representatives of the Grenfell and Hillsborough families. Further to that, we wrote to the victims of Hillsborough, Grenfell and Manchester at each stage of the Bill where amendments were being made, and very much welcomed their engagement.

On the question of whether, if Horizon occurred today, the victims could write to the IPA and ask it to look into the matter, the advocate would be able to ask questions of public authorities, such as the Post Office, and could advise the Government if it became aware of a developing situation. However, it could not currently represent Horizon victims, because this would be retrospective. If an IPA had been in place at the time that that scandal emerged, then they could have spoken to it.

On the question of whether the advocate could support victims at inquiries, at statutory inquiries the chair is able to make provision for legal representation for core participants. The advocate would not represent victims in a legal capacity at either inquests or inquiries.

The noble Baroness, Lady Hamwee, asked about—

[Lord Marks of Henley-on-Thames (LD)]

I am sorry to intervene on the noble Earl. I may be an amendment or two later than the point in the speech which I address, but is he sure that Horizon would count as a major incident, bearing in mind the definition of major incident in Clause 28(2), where a major incident

“means an incident that … occurs in England or Wales after this section comes into force, … causes the death of, or serious harm to, a significant number of individuals, and … is declared … by the Secretary of State to be a major incident for the purposes of this Part”?

I can see that Horizon caused serious financial harm, but is that the harm envisaged? I am not sure that it is. Would the Secretary of State be entitled to declare a major incident in the Horizon circumstances?

[Earl Howe (Con)]

I think we have already debated the latitude that the Secretary of State enjoys in interpreting the word “significant” when we debated the previous group of amendments. The noble Lord has asked a very fair question; I perhaps should not have rushed into an answer to the question I was given on Horizon in particular. It might be wise if, rather than go further at the Dispatch Box, I wrote to the noble Lord about the Horizon case specifically.

The noble Baroness, Lady Hamwee, asked about the IPA’s secretarial and admin support; that was also touched on by the noble Lord, Lord Marks. We will be coming to that in the fourth group of amendments, so if they will allow, we can defer the point to that debate, which my noble friend Lord Roborough will be responding to.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group concerns the obtaining of the views of victims by the standing advocate and their being taken into account, or relayed to the Secretary of State so that they can be taken into account. The central point was that made by the noble Baroness, Lady Newlove. If victims of major incidents are to be given a voice and that voice is to be heard, they need, under this scheme, the standing advocate to be that voice—a voice that co-ordinates and articulates the victims’ response. It will often be a joint or combined voice and the stronger for that.

Under Amendment 124, the type of review or inquiry held would be the subject of the views that must be obtained and relayed. It is a matter on which the views of victims are strongly held. They are often views that are in conflict with the views of the Government. That is a central point about independence.

The next point under this amendment is their views on

“their treatment by public authorities in response to the major incident”.

Again, this is an area of not invariable but regular conflict between victims and government. The questions that arise are, “Was enough done to avoid the incident?”, “Was what was done done in time?”, and “Were sufficient resources devoted to relief and recovery after the incident?”. All those are crucial issues on which the voice of victims needs to be independently heard and taken into account.

Amendment 125 concerns the appointment of additional advocates and says the Secretary of State must seek victims’ views on whether to appoint additional advocates and whom to appoint. Again, that is a requirement that is plainly right, because the identity of the advocate and the appointment of additional advocates matter to victims, who are extremely concerned to know that the investigation and any inquiries are going to be properly carried out.

Finally, the views of the victims to be taken into account include the views that they express before the termination of an appointment of an advocate. Again, that is self-evidently right. We have in a later group an amendment tabled by the noble and learned Lord, Lord Hope of Craighead, removing the right of the Secretary of State to remove the standing advocate on such grounds as he thinks appropriate. I put my name to that. That is an important amendment that we will address when it comes, but it goes hand in hand with this amendment because the purpose of both reflects the reality that inquiries into major incidents may cast light on failings of government or organs of government that may cause the Government embarrassment.

One of the chief virtues of the independent public advocate system proposed in this Bill is precisely its independence of government. It is therefore essential that an advocate appointed to represent victims’ interests should be clear and free to carry out those functions fearlessly. If that involves criticism of government or individual Ministers, those criticisms should be made and investigated. The views of victims on the termination of an advocate’s appointment will therefore be central to that process. They should be central to any consideration of the termination of an advocate’s employment. That should not be left to the Secretary of State without regard to the views of victims.

[Earl Howe (Con)]

My Lords, I express my thanks to the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, for these amendments, which bring us to an important dimension of any major disaster or incident: the need to give families a voice in decisions about the support they receive. I have a great deal of sympathy with the aims of these amendments. I will take them in turn.

Amendment 124 would require the standing advocate to obtain the views of victims of major incidents regarding any review or inquiry held into the incident and their treatment by public authorities, and then communicate those views to the Secretary of State. Let me say immediately that there is no disagreement here between the noble Baroness and the Government as regards the desired outcome. We agree that an important function of the standing advocate will be to champion victims’ voices to the Government and facilitate better engagement between them and government in the aftermath of a major incident. We agree that part of this involves the standing advocate understanding the views of victims and relaying them to the Secretary of State.

It is the Government’s intention that through Clause 29(2)(a) the advocate will communicate the views of victims of a major incident to the Secretary of State. This could include their views regarding any government-initiated review or inquiry into the major incident and their treatment by public authorities. This will provide victims with agency in the process, which is vital. It is therefore a matter of the best way to deliver this policy. The Government’s position is that it is best achieved without the Bill being overly prescriptive, and with Clause 29(2)(a) providing the foundation. A particular advantage of this approach is that the standing advocate would be able to advise on the full range of review mechanisms, including non-statutory inquiries—as I said a while ago to the noble Lord, Lord Wills—which by their nature cannot be specified in legislation. These are valuable options and can be very successful. The Hillsborough Independent Panel has already been mentioned as a good example.

The noble Lord’s Amendment 125 would require the Secretary of State to consider the views of victims before making the appointment of additional advocates. The intention behind the appointment of additional advocates has always been to prevent a single advocate being overwhelmed, or to ensure where necessary the specialist knowledge needed to provide swift and tailored support to victims. One of the key functions of the standing advocate, as outlined in Clause 29, will be to advise the Secretary of State as to the interests of victims, and the Government would consider this to include advice on whether additional advocates are needed and who may be suitable to appoint. This advice could include the views of victims which they had gathered.

Furthermore, as the Secretary of State has already committed, we will publish a policy statement that will give additional detail about the factors the Secretary of State will consider when appointing additional advocates, including the needs of victims. We believe this to be a better and more flexible approach to ensure that additional advocates can be deployed swiftly when needed. I am concerned that if we were to proceed as the noble Lord suggests with this amendment, a consultation process with the victims would be required prior to any further advocates being appointed. A consultation has the potential to unduly delay the appointment of further advocates and reduce the agility of this scheme to react to the developing situation. Furthermore, the last thing that we would wish to impose on victims during their grief is an additional bureaucratic consultation process.

I come lastly to the noble Lord’s similar Amendment 128, which says that the Secretary of State must consider the views of victims before an advocate’s appointment is terminated. There are a few scenarios in which we imagine that the Secretary of State will use his or her discretion to determine the appointment of an advocate using this power. I will speak to this in more detail in response to the amendment from the noble and learned Lord, Lord Hope, in a later grouping. However, I believe it would be helpful to briefly summarise those scenarios.

First, should additional advocates be appointed, it is right that the Secretary of State has the ability to scale down the number of advocates should the need no longer exist when the peak of activity is over. Secondly, the Government have always been clear that we will prioritise rapid appointment of an advocate following a major incident to ensure that victims are supported from an early stage. However, it may be necessary, following a greater understanding of the developing needs of the victims, or conversely the capacity of an advocate, to substitute one advocate for another. Thirdly, this power may be used to replace an advocate who does not command the confidence of the victims. I hope that those explanations are helpful to reassure the noble Baroness as to the intent behind this provision.

Lastly, as with the noble Baroness’s Amendment 125, I am concerned that, should the Secretary of State be required to carry out a consultation process with the victims, that would severely cut across the ability of the scheme to be flexible and adapt quickly to changing demands.

I believe that victim agency—if I may use that word again—is important, and that has come through strongly during the passage of the Bill, not least in another place. While the amendments serve as a reminder of that principle, I do not believe they are necessary.

Victims and Prisoners Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Earl Howe]

I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.

I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.

I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which 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 confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.

We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.

Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.

In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.

[Earl Howe (Con)]

I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.

Counter-Terrorism and Border Security Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.

[Lord Marks of Henley-on-Thames]

I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?

[Earl Howe]

My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.

Health and Social Care Act 2012: Risk Register

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Wednesday 9th July 2014 Lords Chamber

[Earl Howe]

My Lords, I am sure the noble Lord would expect me to say that hypothetical situations are not in my domain, and that is true in this case. The Government’s position is that there is a balance to be struck between transparency of activity in government and the safe space required for effective policy-making. That is why, in November 2011, I laid out for this House a comprehensive list of the areas covered by the transition risk register, but also why, at the same time, the Government decided to withhold publication of the register itself.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend will well remember the concerns of my party on this issue in 2012. I wonder whether he considers now, two years after the Act, that even if the private advice of civil servants should retain protection, the factual information in the register could now be published. That would enable everyone to monitor how the Act is working against what was predicted in 2012.

[Earl Howe]

My Lords, it is possible to monitor how the Act is working without publishing the risk register. It is quite true that the transition to the new commissioning system is over. However, the risk register related expressly to the implementation of the reforms and the system is still bedding down. Therefore, we are still of the view that it is inappropriate to publish the register.

Medical Litigation: Impact on Medical Innovation

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Monday 15th July 2013 Lords Chamber

[Earl Howe]

I share the noble Baroness’s concern, but at the same time I recognise that the noble Baroness, Lady Neuberger, and her expert group have done a very thorough job of work. It is now up to the Government and the whole medical community to consider and reflect on the conclusions that the noble Baroness has reached. One thing that she has said is that her decision is not a recommendation to move away from best practice in end-of-life care.

[Lord Marks of Henley-on-Thames]

My Lords, while of course we need to be cautious about encouraging a compensation culture, does my noble friend agree that medical litigation not only secures compensation for many who deserve it but does a great deal to maintain and improve medical standards in this country?

[Earl Howe]

My noble friend makes an extremely important point. Our policy is that it is right that NHS patients who are injured as a result of clinical negligence should be able to obtain correct and full compensation. Under the current system, compensation is in general paid only where legal liability can be established. The underlying principles are clear cut and enshrined in common law.

NHS: Reconfiguration of Services

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Tuesday 15th January 2013 Lords Chamber

[Earl Howe]

My Lords, the referral of this merger proposal by the OFT to the Competition Commission is not at all a result of the measures brought in by the current Government; it is a result of the provisions of the Enterprise Act 2002. Even if there had been no Health and Social Care Act last year, we would have found ourselves in this situation. This is the very first time that a proposed merger of two foundation trusts has raised competition issues and there is no doubt that the OFT would have had an interest whatever the situation. In the Act we avoided double jeopardy, whereby the Co-operation and Competition Panel, set up by the previous Administration, might have determined its view on this merger and then there would have been a second-guessing process by the competition authorities. We have avoided that and that is very positive. Aspects of this merger obviously impact on patients and patient choice, and it is right, in the judgment of the OFT, that scrutiny should be given to the matter.

[Lord Marks of Henley-on-Thames]

My Lords, will my noble friend confirm that before the decision was taken to refer the proposed Dorset merger to the Competition Commission Monitor’s advice was obtained by the OFT, as it should have been pursuant to Section 79 of the 2012 Act? Is it right that in giving that advice Monitor’s duty was to have regard to the quality of healthcare services? If that is right, is this not an example of this part of the 2012 legislation working in precisely the way it was designed—putting patient care at the heart of decision-making in this difficult area of hospital mergers?

[Earl Howe]

I am grateful to my noble friend and I can give the confirmation that he seeks. Monitor’s advice was sought and obtained by the OFT. He is quite right that that it is one of the benefits from the Health and Social Care Act. In situations of this kind we expect Monitor and the NHS Commissioning Board to engage with the Competition Commission on FT mergers but before that with the OFT because Monitor, as a health-specific regulator, has the insight into the considerations that bear most closely on the interests of patients.

Health Transition Risk Register

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Thursday 10th May 2012 Lords Chamber

[Earl Howe]

The noble Lord, Lord Armstrong, with his immense experience at the top of government, is very familiar with decisions of this nature, and I am grateful for what he said. Perhaps I should make it clear that the decision the Government took was not a blanket decision about all risk registers. The law requires the Government to look at each case on its merits. We believe that a risk register of this particularly sensitive kind is an exceptional matter. The noble Lord, Lord Hunt, pointed out instances of risk registers that might be less sensitive. He mentioned the one relating to Heathrow’s extension. I suggest that that was a less sensitive case. The matter was clearly on a smaller scale; it was less political; and it became an issue after the project had been closed down. Therefore, the release of the register was perhaps not altogether a surprising decision by the then Government.

[Lord Marks of Henley-on-Thames]

My Lords, I apologise to the House for not being in my place when my noble friend read the Statement. However, I read the Secretary of State’s Statement in full. My noble friend mentioned that the previous Administration refused freedom of information requests for disclosure of risk registers on three occasions. Will he tell the House how many times risk register disclosure has been refused by both this and the previous Administration? Does he know that in Wales the Labour Administration have also refused disclosure of a Department of Health risk register? Does he discern any difference of approach to the disclosure of risk registers between this and the previous Administration?

[Earl Howe]

I am grateful to my noble friend. The answer to his final question is no, I do not believe that there is a difference of approach. I do not have data relating to all government departments but, as I said earlier, the previous Administration refused to release the Department of Health’s strategic risk registers in response to three freedom of information requests. Indeed, one of those was responded to by the right honourable gentleman Mr Burnham in language not dissimilar to that which I have used today. A search of my department’s freedom of information database indicates that, since the Act came into force in January 2005, the department has received six specific requests for risk registers. In no case was the request granted. My noble friend also referred to the Welsh example, which is a very interesting one. In April of this year the Labour Assembly Government in Wales refused to disclose a risk register, and it was a health register. The reasons given for withholding that register mirrored exactly those that we are using currently.

Health and Social Care Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Monday 12th March 2012 Lords Chamber

[Earl Howe]

My Lords, I think back to numerous debates that we have had in this House, which of course are recorded in Hansard. Many of the risks that I articulated on 28 November last have been gone through by your Lordships almost ad nauseam.

[Lord Marks of Henley-on-Thames]

What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?

[Earl Howe]

I have personally seen to it that the tribunal has been made aware of the urgency of releasing its reasons, and it has acknowledged that urgency.

Health and Social Care Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Wednesday 8th February 2012 Lords Chamber

[Earl Howe]

My Lords, I shall speak also to Amendments 9, 34, 53 and 54.

This group of amendments deals with the role of the Secretary of State in the health system. As noble Lords will be aware, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians to patients themselves and to doctors and other professionals. Greater local autonomy is one of the key things that will enable local front-line services to become more responsive and innovative, in turn delivering greater efficiency and quality. The Bill makes clear that Ministers are responsible, not for direct operational management, but for overseeing and holding to account the national bodies in the system—backed by extensive powers of intervention in the event of significant failure.

The amendments we are debating here cover some of the key concerns raised by the Constitution Committee and Peers from across the House, as part of our wider discussions about ministerial accountability. These are the autonomy duties on the Secretary of State and the Commissioning Board and the link between the functions of clinical commissioning groups and the Secretary of State’s duty to promote the comprehensive health service. I will speak to each of the amendments tabled in my name, as well as the amendments tabled by the noble Baroness, Lady Thornton, which seek to remove the duties of autonomy on the NHS Commissioning Board and the Secretary of State.

Amendments 8 to 10 and 52 to 54 concern the autonomy duties placed on the Secretary of State and the board. Government Amendments 8 and 53 re-phrase the duties of autonomy on the Secretary of State and the Commissioning Board as duties to,

“have regard to the desirability of”,

autonomy, rather than duties to,

“act with a view to securing”,

such autonomy. The desirability of autonomy is therefore a factor for the Secretary of State and the board to consider when exercising their functions, rather than an end which they must seek to secure or promote. That should allay the fears of those who felt that the autonomy duties would prevent Ministers and the board intervening when they needed to.

In addition, changing to a duty to have regard necessarily means that the autonomy duties are subsidiary to the primary duties of the Secretary of State in Section 1 of the NHS Act: to promote the health service and to exercise his functions so as to secure the provision of services. To that extent, there is no further need to state that the duties of autonomy are “subject to” his Section 1 duties. However, government Amendments 9 and 54 make a further change to address this point. Rather than simply say that the autonomy duty is “subject to” the duty of promoting the comprehensive health service, they set out an explicit test, which makes clear that promoting the health service and securing the provision of services takes priority over autonomy, if there is ever a conflict between the duties. We think that this more clearly indicates how the Secretary of State and the board should resolve any tension between autonomy and the interests of the health service. I hope that noble Lords will agree that this provides helpful clarity and avoids any possible doubt.

Having said that I would address the amendments of the noble Baroness, Lady Thornton, I think that on reflection it would be discourteous of me to do so before she has introduced them. I shall therefore retain my remarks for later in the debate if she chooses to speak to those amendments. Meanwhile, I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, perhaps I may explain why I support the Government’s amendments on the autonomy clauses to which I have added my name—that is, Amendments 8, 9, 53 and 54.

The autonomy clauses were at the heart of the Government’s consultation with other noble Lords about the Secretary of State’s duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships’ Constitution Committee, a substantial consensus was reached.

The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State’s duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, “I will not intervene because I am bound by my duty to promote autonomy”. In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene.

Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State.

The consultations that we held outside the Chamber during Committee led to the formulation of the Government’s amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves.

However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State’s or the board’s duties in relation to autonomy and their overarching duties under Clause 1 or the board’s overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose.

I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed.

Health and Social Care Bill

Debate between Earl Howe and Lord Marks of Henley-on-Thames

Wednesday 30th November 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

The answer is that we are not at one about the vulnerability of my amendment to judicial review. I rather hope that that is never tested; nevertheless, I hope that the amendments are accepted.

[Earl Howe]

My Lords, the policy of the Government and the vision that we have consistently set out is that Ministers will be responsible for overseeing and holding to account the national bodies, backed by extensive powers of intervention in the event of significant failure. I say to my noble friend Lord Newton that that is what the Bill provides for. These powers are essential if Ministers are to be able to retain ultimate accountability for the health service, for the very reasons that he stated. I have to say that some of his phraseology was, in my view, unnecessarily extravagant, if I may use that phrase. The Secretary of State will not stand back; nor will he wash his hands of what is going on, as my noble friend put it. The Bill enables the Secretary of State to intervene where he believes that Monitor, the board, the Care Quality Commission, NICE, HealthWatch or the Information Centre are failing or have failed to exercise their functions, and that failure is significant. In the event that Ministers use these intervention powers, they will be required to publish the reasons for doing so, including an explanation of why they consider the failure to be significant. These requirements will provide transparency to the decision-making process.

I will deal with the question posed by my noble friend Lord Marks. Why should we use the word “significant”? The clear aim of its use is, exactly as my noble friend suggested, to stop Ministers intervening in inconsequential matters. There is no case law on the meaning of “significant failure”. The Secretary of State will need to decide whether a failure is significant. However, cases have considered the meaning of “significant” in other contexts and have taken the approach that, while a dictionary definition of “significant”—

“noteworthy; of considerable amount or importance”—

is not to substitute a different expression for the statute, it remains a helpful indication of what the term means. There is a degree of flexibility inherent in the term “significant”, and I believe that that is helpful in the context of the arguments put forward by the noble Lord, Lord Owen—who is not in his place—and my noble friend Lord Mawhinney.

I will first deal with Amendment 152. I respectfully suggest that there is a gap between that amendment and that of my noble friends Lord Marks and Lady Williams. Amendment 152 seeks to amend the Bill to give the Secretary of State wide powers to direct the board and clinical commissioning groups in how they carry out their functions. I said “wide powers”, and that fundamentally cuts across the vision of a health service free from political micromanagement. It therefore gets us back into exactly the territory that we want to get away from.

Of course it is important, as I have said, that there are intervention powers if things go wrong and those powers are in the Bill. The Bill also sets out a robust system by which the board will hold CCGs to account. I will come on to that in a moment. Creating a sweeping power of direction would seriously undermine the autonomy of the board and local commissioning groups and allow Ministers to use directions or indeed the threat of directions to second-guess operational decisions. In addition, any direct power over CCGs would duplicate and undermine the role of the board which is responsible for overseeing local commissioning.

Amendment 153 makes a more subtle point. It seeks to enable the Secretary of State to direct the board should he consider it to be failing to carry out its functions in the best interests of the health service. Let me reassure my noble friend of what I am sure he does not need to be told. We would always expect the board to act in a way that is consistent with the interests of the health service. This is made clear by the duty on the board to promote the NHS constitution and the duty set out by proposed new Section 1E(2), which ensures that the board is also subject to the duty to promote the comprehensive health service. If the board were acting in a way that was not consistent with those duties, then it would be acting unlawfully. That may constitute a significant failure by the board to exercise its functions properly or indeed at all in relation to which the Secretary of State would consider intervening.

[Lord Marks of Henley-on-Thames]

My Lords, I am sorry to intervene at this stage but does my noble friend the Minister not accept that there may well be two divergent views of what the best interests of the health service are, and that the board may hold one view, the Secretary of State an entirely different view—or, on the other hand, CCGs may hold one view and the board an entirely different view—and that undermines any notion of accountability if the Secretary of State has to stand up in Parliament and say, “I do not believe what the board has done is in the interests of the health service but the board does and I cannot do anything about it”? That is the mischief at which these amendments are directed.

[Earl Howe]

I take the point but I hope my noble friend will agree that I have an answer. The crucial point is that, while we would expect the board to have a clear shared understanding of what the interests of the health service are, the Secretary of State has mechanisms over the board which he can use if necessary to clearly set out what these interests are. He can do that by setting objectives and he can hold the board to account for those. So he has other levers.

Amendment 277, also in the name of my noble friend Lady Williams, would prevent the Secretary of State from intervening in specific cases where he considers that Monitor has failed or is failing to perform its functions. We believe that it is important for the Secretary of State to be able to intervene in the event of a significant failure by Monitor to perform its functions. That intervention power does not exist at all under current legislation, and we believe it should. We do not believe Ministers should have the power to intervene in individual cases. Such a power would risk politically motivated interference and undermine the independence of the regulator. That point is extremely important.

However, there is an important exception to this rule in relation to the continuity of services. Amendments introduced in another place allow the Secretary of State to intervene in relation to proposals for securing access to services where a provider has become unsustainable. The Secretary of State would be able to exercise a veto if Monitor and clinical commissioning groups have failed to discharge their functions, to follow the proper procedures or to secure access to services.

We are clear that the wording of the clause as it stands strikes the right balance, enabling the Secretary of State to intervene when necessary to address systemic failure, while ensuring that Monitor is able to carry out its functions free from potentially time-consuming and politically motivated interventions relating to individual cases. The NHS Commissioning Board will also have powers of intervention, as set out in new Section 14Z19, to support CCGs and take action where necessary if there is evidence that they are not meeting their statutory duties or that there is a significant risk of them failing to do so.

I recognise that the intention behind Amendments 220ZAA and 220ZAB, which look to ensure that the board only intervenes in a CCG when it is satisfied that the CCG is failing, or is at significant risk of failing, is to exercise a function in the best interests of the NHS. However, as the Bill is drafted, the board can determine when a CCG is not exercising its functions properly and that is surely the better approach. We are giving the board discretion to determine when intervention is necessary, based on the terms of each statutory function that CCGs have, not in relation to a separate criterion. The amendment would actually narrow the grounds on which the board would have power to intervene, which I do not think would be at all helpful.

Finally, I would like to address the point put to me by the noble Lord, Lord Hunt, about waiting time objectives. The noble Lord implies that Ministers would be powerless in the face of waiting times. That is simply not the case. Ministers’ main weapons on this issue would be the standing rules and the NHS constitution. Current contractual requirements relating to waiting times, such as 18 weeks, are covered by the constitution through the handbook and will form a key feature of the standing rules pending passage of this Bill. If the Secretary of State wanted to act on a new waiting time issue, the option is there for the NHS constitution handbook to be revised and the standing rules updated accordingly.

I hope that I have provided enough detail on these clauses to enable my noble friend to withdraw the amendments.