Health and Social Care Bill

Lord Clement-Jones Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, I have the greatest respect for my noble friend Lord Owen—a noted Health Secretary and Foreign Secretary, and someone who made a major contribution towards peace in the Balkans. He became, obviously, one of the glitterati of British politics. Many of your Lordships may not be aware that he began training as a registrar in neurology at St Thomas’s Hospital and I often contemplate what might have happened to his future career if he had stuck with neurology and not turned to politics.

While I talk of neurology, may I just say to the noble Lord, Lord Deben, that I was the neurologist on the Southwood working party on BSE which gave advice to the Government on that tragic, difficult problem in 1988? I am very glad that we got that advice right—we learnt a lot about the assessment of risk at that time.

To return to this Bill and the amendment moved by the noble Lord, Lord Owen, which, with some difficulty, I feel that I cannot support, I am a fervent supporter of the National Health Service. I spent much of my professional life working in it and in academic medicine, and when this Bill was introduced into your Lordships’ House I joined with the voices of the BMA, the royal colleges, the nursing organisations and many others in saying that in my opinion the Bill was potentially damaging to the NHS and that it was unacceptable. However, we have moved on. I have been involved with many of your Lordships in the lengthy, at times almost interminable, debates which have improved this Bill beyond recognition. It is not perfect, and there are still issues which perhaps need to be handled by regulation, but it is an infinitely better Bill than the one which came originally into this House. For that reason, any further delay would be unacceptable.

Having said that, I was greatly touched by the wise words of the noble and learned Lord, Lord Mackay of Clashfern, and by the very wise words of the noble Baroness, Lady Williams, who has been a tower of strength throughout all the debates in this House. I genuinely believe that if the medical organisations which are continuing to express their complete opposition to the Bill had fully appreciated the enormous number of amendments that have been carried and accepted by the Government in this House, they would not be continuing to take their stance as fiercely as they are. The Bill has been transformed; for that reason, if your Lordships will forgive the cliché, enough is enough. We are where we are. It is time to give this Bill a Third Reading.

[Lord Clement-Jones]

My Lords, it is a privilege to follow the noble Lord, Lord Walton, who, as we all know, carries such respect on health matters in this House. I do not doubt the sincerity of the noble Lord, Lord Owen, in his fundamental opposition to the whole Bill. Indeed, he expressed it very clearly in his Observer article yesterday. He put the arguments very fairly on his Motion, but I have absolutely no hesitation in disagreeing with it today—and I say to him, in his capacity as a doctor, that I feel no physical or mental discomfort with a whipped vote on the matter, for the very key reason that my noble friend Lady Williams mentioned.

The risk register whose publication is being requested was written as long ago as November 2010. It will certainly not relate to the Bill being considered today, as it was drawn up many months before the pause in the Bill’s proceedings. Many changes to the Bill were made as a result of the Future Forum process, headed up by Professor Steve Field. The Bill was then changed significantly in Committee and on Report in this House, as the recent House of Commons research paper makes absolutely clear. The risks identified in the register are therefore those of the old Bill, long since superseded, or even of the White Paper which preceded it. It will have been based on worst-case scenarios—

[Baroness Tonge]

In all sincerity, if the risk register is so totally out of date and bears no relevance at all to the new amended Bill, would its publication not be a wonderful opportunity for this side of the House to show how much it has improved the Bill and dispatched all risks?

[Lord Clement-Jones]

My Lords, my next sentence was about to deal with precisely the point made by my noble friend. It can therefore be argued that publication now by the Government could, and would, wholly distort rational discussion about the Bill in its present form. The job of scrutiny carried out by your Lordships’ House is to look at every scenario and from the experience of its Members, which is considerable, suggest amendments which mitigate the problems identified. That is precisely what this House has carried out and, I would say, to good effect. However, the Motion is not suggesting that we delay the current Bill against the remote possibility that there is some risk in it which the Department of Health has identified and this House has not. It is saying that we should delay it pending the First-tier Tribunal’s reason for its decision being published.

What will passing this amendment to the Motion therefore achieve? When we know the details of the decision, the Government will still be fully entitled to appeal. They have already won with the strategic risk register, and may well take the view that they will be able to overturn Professor Angel’s decision on the transitional register. Do we want to deny them the right to appeal in the face of the very fact that with one limited exception, which the noble Baroness, Lady Royall, has mentioned, the Labour Government did not publish these risk registers when they were in government? Where would that leave us, even if the detailed reasons become available?

I was slightly taken aback by the use of the expression “rush” from the noble and learned Lord, Lord Falconer of Thoroton. I submit that a debate over revealing an up-to-date risk register might just have some merits, but not in these circumstances, where its contents are of historical interest only.

[Lord Grocott]

I am certain that the House wants to reach a conclusion, but that is a bad way to start.

--- Later in debate ---

[Lord Owen]

I said that people outside this House consider it to be a flagrant lie. I have been around Parliament long enough to know what I cannot say and what I can.

There is another aspect to the Bill. The Government also fought an election on the basis of a constitutional promise that there would be no increase in the powers of EU legislation unless there was a referendum. There are very serious questions about the Bill as to the impact on EU legislation and the extent to which we will see the Commission making decisions on the National Health Service that it has not hitherto thought it either wise or, possibly, empowered to make. That is the second big constitutional question.

[Lord Clement-Jones]

My Lords—

[Lord Owen]

No, the noble Lord has had his say. All I am saying now to the House is that this is a decision on which there are strong opinions in many ways. A lot of Members will vote just on the basis that under no circumstances do they want risk registers published.

I say only this—that when companies are having an IPO, we legislate for them to produce the fullest, most detailed risk register of this. We also empower them in their annual, and in the case of America in their quarterly, statements to reveal risk registers at a penalty of going to court if they lie about it. There were times in this debate when I almost thought we were being asked to give a complete carte blanche to the Civil Service to say what it liked irrespective. I hope that is not the position of the Cabinet Secretaries and the Permanent Secretaries. It is possible that either a commissioner or a tribunal might look at a risk register and think that there were flagrant factual errors.

I think it is very dangerous to use “principle” on this question, if I may say so to the noble Earl. The principle surely cannot be that under the Freedom of Information Act some risk registers might never need to be published in the public good. That is a judgment on which, as he says, one can then go to appeal. However, there comes a point when one would have to judge against the background of repeated demands for disclosure. It is on this that the House must make up its mind. Can we wait a couple of weeks—three at the most—before the House prorogues to hear the words of the chairman of the appeal tribunal to whom we in the Freedom of Information Act gave the power to make that decision? The fact that it is against the Government does not mean we should give them a carte blanche, and I hope that this House will not do so. I wish therefore to test the opinion of the House.