Small Business, Enterprise and Employment Bill

Lord Colwyn Excerpts

Wednesday 7th January 2015 Grand Committee

Relevant document: 11th Report from the Delegated Powers Committee

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

My Lords, if there is a Division in the Chamber, the Committee will adjourn for 10 minutes.

Amendment 1

Moved by

Medical Innovation Bill [HL]

Lord Colwyn Excerpts

Friday 12th December 2014 Lords Chamber

Those are the amendments that I wish to speak to at the moment. I will leave them for the consideration of the House. I beg to move.

[Lord Colwyn (Con)]

My Lords, I support the amendment in the name of the noble Lord, Lord Winston, providing for a number of medical treatments to be excluded from the Bill. As I said at Second Reading, I have always encouraged innovation and I listened to the examples given by the noble Lord in Committee and to the response from my noble friend the Minister, who said:

“To set out specific medical treatments or circumstances that would or would not be covered by the Bill would make it complicated for doctors to follow and less flexible to individual patients’ circumstances”.—[Official Report, 24/10/14; col. 886.]

I take the opposite view. Not to state clearly on the face of the Bill where its provisions do not extend would make innovative practice much more complicated for doctors and, I believe, be a risk to patient safety. Surely, if this House is to give its approval to a Bill where both the title and stated aim are to encourage more of something that is already being done on the front line of the medical profession, and furthermore where it actually stands to impact on current good medical practice, then there needs to be maximum clarity about where and when the Bill actually applies. On Report, it falls to the House to ensure that the Bill has clarity. We must do so to limit the potential risks created by my noble friend Lord Saatchi’s Bill and prevent it from extending into areas of treatment where it could pose a risk to the patient.

In Committee, the noble Lord, Lord Winston, gave an example of responsible innovation, describing the treatment of a young woman with a life-threatening ectopic pregnancy. From this example, as with many others, we see how potentially dangerous it would be for the Bill to extend into emergency care, operative surgery, delivery during childbirth and so forth. These areas of treatment must be excluded from the Bill. Where a doctor is in theatre and required to act quickly in a rapidly deteriorating situation, which we all know is a frequent scenario, a Bill such as this, which has the best of intentions, should not have the remotest potential to confuse that doctor about their responsibility, namely, to use their professional judgment and act quickly in the best interests of the patient.

My Lords, a recurring theme in this debate, for good reason, is that current law allows doctors acting responsibly to innovate. The Medical Protection Society, a body that remains opposed to this Bill, notes that, currently, a slight departure from NICE guidance—guidance that has been held to be the established method by which doctors gauge what procedures and drugs are standard—is done on the basis of a doctor’s professional judgment. Common law, rooted in the Bolam and the Bolitho tests for standards of care, underpins that judgment. Yet I believe that the MPS is right to say that the Bill, without greater clarity, would add,

“unnecessary bureaucracy to current good medical practice”,

creating more hurdles to treatment than there are at present. This is why the amendment is so important.

To cover briefly the exclusion of primary care from the Bill, as I understand it, the definition of an “appropriately qualified doctor” is flexible enough for it to be possible to cover treatment in a wide range of settings, including primary care. If the Bill was to reach treatment given in a primary care setting, then there are a number of concerns. In Clause 1 there is a requirement for the doctor to,

“obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment”.

There has been much debate about how effective this is as a safeguard, but in a primary care setting the risk of this requirement being open to interpretation is particularly high. Take an independent general practitioner seeking to perform an innovative treatment through the process outlined in the Bill: who would be the appropriately qualified doctor? Would it be another independent practitioner known to be in agreement? Why would a general practitioner, seeking to innovate irresponsibly, seek the advice of someone they know to be in disagreement?

While such a practitioner is absolutely in the minority of GPs, primary care must explicitly feature in the Bill as one of those areas of medical treatment excluded. Not to do so, I believe, has the potential to risk patient safety. Clinical governance in primary care looks very different to what can be seen in hospitals; GP practices tend to work in greater isolation. The concern among many in the medical community, such as the MPS, which has about 20,000 GP members, cannot be ignored. Its concern is that the Bill is placing primary care doctors in a position where treatment is demanded of them that their decision-making structures do not support them to carry out. It all comes back down to the danger of doctors being falsely reassured, and of patients being led to believe, incorrectly, that their doctor is somehow in a position to perform an innovative treatment for their condition because of the Bill.

I remain unconvinced that legislation is necessary. Continued parliamentary scrutiny is certainly needed and I give the amendment my full support as an important step towards bringing much greater clarity to the Bill and to protecting patients.

[Lord Turnberg (Lab)]

My Lords, I am pleased that many of the amendments that I and others proposed in Committee have now appeared in one form or another in the amendments before us. I presume that they are acceptable to the noble Lord, Lord Saatchi—many are in his name—and to the Government. May I also say how much I appreciated Daniel Greenberg’s efforts in trying to draft acceptable wording in many of the amendments?

There was considerable correspondence in the media after Committee stage and quite a bit of opposition voiced by the 100 oncologists who wrote to the Times expressing their concern. This was followed by a robust response by the noble Lord, Lord Saatchi, in which he accused them of being reactionary, failing to accept innovations and not wanting to move with the times. Considering that these doctors are among the most forward-looking and innovative researchers in cancer treatment, that was somewhat unfortunate and inappropriate. Their worries, and those of the BMA, the Medical Defence Union, the Medical Protection Society, the BioIndustry Association and the Academy of Medical Sciences, were about whether the Bill was really necessary, suggesting that the barriers to innovation—of which there are many—do not include a fear of litigation. Perhaps more importantly, they were worried about its safety.

These amendments go some way to help on the safety issues, even if they do not make it a necessary Bill—I will not go into that today. In this group, I am glad to see in Amendments 8 and 9 in the name of the noble Lord, Lord Saatchi, that attention has been paid to the need to clarify that the Bill will not interfere with any research or clinical trials. I am very supportive of that. There was a worry that research might be inhibited by the Bill. There is now provision in Amendment 14 to ensure that the Bill will not cut across the need to innovate in an emergency.

Amendment 1 in the name of my noble friend Lord Winston achieves a similar intent and expands on it. His amendment is excellent because it points out how it is important, in an emergency, to be able to innovate without going through this process. I believe that the clarity my noble friend Lord Winston seeks in Amendment 6 by defining “innovation” is very helpful. I hope that the noble Lord, Lord Saatchi, will see it as a helpful clarification and accept it.

Amendment 15 seems to suggest that a doctor will not be legally liable if he or she does not innovate. If it says that then I am strongly in favour of it. I hope that it does. However, there are a number of other issues that require further work. I will raise those points for clarification in a later group. They are concerned with increasing the safety of the Bill.

Medical Innovation Bill [HL]

Lord Colwyn Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Colwyn (Con)]

My Lords, I should like to congratulate my noble friend Lord Saatchi on the many hours of research that he must have done to introduce this Bill.

I am not sure that the proposed legislation is necessary. Any need for additional support for doctors should be achieved through professional guidance, not rigid statute. I declare a one-time interest as chairman of the dental section of the Medical Protection Society, as a member of that council and as a long-term supporter of the integration of allopathic medicine with holistic and natural medicine. I am also president of the All- Party Group for Integrated Healthcare.

When my noble friend introduced his Bill on the 5 June, I assumed that it would be yet another complaint against those practitioners of complementary medicine who are not all registered and regulated. I am currently trying to persuade the Department of Health to introduce statutory regulation and registration for practitioners of herbal medicine, but very little progress is being made.

The Bill is designed to codify existing best practice in relation to decisions by medical practitioners to depart from standard practice and to administer innovative treatment, but I believe that existing legislation is sufficient and adequate and that the Bill is not necessary.

I have always encouraged innovation. I asked the Library whether it would look at some of the speeches that I made in the 1970s and 1980s which referred to innovation. It came up with a debate on heart disease on 25 July 1984, in which I said that,

“I am of the opinion that the deposition of cholesterol in our artery walls, and, for example, the abnormal cellular division that causes cancer, are all normal occurrences throughout life, and that it is the action of our immune system”—

I then listed some of the vital organs—

“which make the necessary day-to-day repairs. However, these repair systems are not perfect, and the rate of repair declines relative to the rate of damage”.—[Official Report, 25/7/84; col. 371.]

Recently, there have been references in the media that up to half of cancers could be fought using the body’s own immune system and that drugs to help patients heal themselves will be the next innovative breakthrough. Pharmaceutical companies are rushing to get therapies into the clinic as regulators agree to help fast-track approval after spectacular early trials. Doctors are beginning to understand that the treatment labelled “immunotherapy” is finally becoming a reality.

The issue of freedom of choice in medicine is paramount. There is no justification for assuming that practitioners of complementary medicine should be allowed to treat patients without undergoing the same high standards of training if they want the responsibility and authority to practise their medicine. I like an openness to other models of health and illness and a willingness to experiment. A number of holistically inclined doctors will try out botanical drugs, work in association with osteopaths, chiropractors and other fringe therapists, study such techniques as acupuncture and homeopathy, and consider the possibility that psychic healing is a reality worth documenting. I am pleased to meet doctors who concentrate on health and its maintenance rather than on disease and its treatment. To see them emphasise nutrition and discourage medication is a remarkable and welcome change.

Much of the publicity surrounding the Bill has focused on finding a cure for cancer but the amended Bill applies to any medical condition, thus providing an opportunity to provide unorthodox treatment for all sorts of common illnesses. Current law allows doctors acting responsibly to innovate. The Bill recognises the value of current law as it purports the current Bolam tests for standards of care as well as the current law on consent. The Bill seems to do the exact opposite. In a climate post Mid-Staffordshire, where hundreds of patients died from negligent care and with the cases against Mr Ian Paterson for undertaking many unnecessary operations, do we really want to diminish patients’ rights to redress? Thus, a doctor acting responsibly, with the support of a reasonable body of peers and the informed consent of their patient, would not be guilty of negligence under the current law. However, the Bill would allow that a doctor may no longer be negligent even when acting without the support of a reasonable body of doctors.

I have received Department of Health consultation responses from medical organisations, patients’ bodies and charities, all saying, that there is no evidence that doctors do not innovate because of the fear of litigation. I fear the amended Bill will increase litigation, as the lack of clarity, contradiction and uncertainty of terms, and the fact that there are no definitions of key words, will require interpretation by judges in court and create an avalanche of satellite litigation. Perversely the amended Bill may actually discourage innovation. The fact that key words—for example, “innovation”—are not defined will confuse doctors, who will be wary of any innovation because of concerns about what they are allowed to do. Exposing patients to innovative treatments is likely to involve a greater range of ethical and legal issues than standard treatments. Progress in cancer treatment comes about by carefully controlled studies and trials, where patients’ rights and ethics are protected.

The amended Bill does nothing to assist innovation. There is nothing about the regulation of doctors by the GMC and others, the lack of funding, the regulation of research, transparency or the sharing of information by pharmaceutical companies—all key to this issue. Surely there are better ways of promoting medical innovation than by precluding patients from seeking redress when harmed by doctors whose treatment is not supported by any responsible body of their profession. I support giving the Bill a Second Reading to allow careful scrutiny by a Committee of this House. I agree with my noble friend Lord Cormack that pre-legislative scrutiny would have been ideal.

Public Service Pensions Bill

Lord Colwyn Excerpts

Wednesday 9th January 2013 Lords Chamber

[Lord Sharkey]

My Lords, this amendment has two purposes. The first is to put into the Bill the requirement that pension boards have at least one-third of their members who are members of the underlying scheme. The second is to make certain that these pension boards universally have some influence and are not entirely to be emasculated by the scheme regulators. The drafting of the Bill leaves the exact powers and responsibility of the boards to be defined by the scheme regulators, saying only that the boards are to assist the scheme manager. As I said at Second Reading, the word “assist” is virtually meaningless in this context and that is why this amendment also gives a board the explicit power to make recommendations to the scheme manager.

The question of scheme members being members of their scheme’s pension board should not be controversial; as the noble Lord, Lord Eatwell, mentioned a moment ago, recommendation 17 of the report of the noble Lord, Lord Hutton, says explicitly that every public service pension scheme and individual LGPS fund should have a properly constituted, trained and competent pension board with member nominees. The Government agree with this principle. In Committee in the Commons, the Minister said that Lord Hutton recommended that each pension scheme local board should have a pension board and the board should include member representatives. We agree.

Lord Hutton, on pages 125 and 126 of his report, explains what factors led to this recommendation. He notes that there are currently boards where members are sometimes not formally represented. He notes with approval that the majority of local authorities have some form of member representation in their governance arrangements. However, he also noted that it seemed that only a very small minority of member representatives had full voting rights. He quotes evidence given to his commission by UNISON that,

“by 2009 only seven of the 89 England and Wales Fund authorities had allowed voting by scheme members of pension committees”.

That is not representation, that is tokenism. It is still tokenism even after Government Amendment 40 in this group. All this amendment does is to require that members of a scheme must be represented on the scheme’s pension board. It is entirely silent about the size of this representation.

This whole issue of size of member representation on pension boards was discussed in some detail at Committee stage in the Commons. There, Chris Leslie proposed an amendment that would have resulted in one-third of pension board members being scheme members. The Government declined to agree. The Minister said:

“There is no objection in principle to having scheme-member-nominated representation on pension boards. That is our policy. Our objection is to applying a private sector standard to the public sector schemes without considering whether that is appropriate given the different structures and contexts of public schemes. Unlike the private sector, the public schemes span large work forces and multiple employers”.—[Official Report, Commons, Public Service Pensions Bill Committee, 8/11/12; cols 267-68.]

This refers to a provision in the Pensions Act 2004; Section 241 of this Act requires pension boards in the private sector to have at least one-third of their members to be members of the underlying scheme. The Minister’s arguments, that what the private sector is forced to do by statute is not appropriate as a statutory provision for the public sector, seems to me to be on very weak ground. I would specifically ask the Minister to explain in detail why we can happily have a one-third rule in statute for private pension schemes but not for public pension schemes.

In the Commons, in Committee, the Government attempted to resolve the argument over the size of member representation in part by saying:

“I can tell the hon. Gentleman that for various schemes, there is already extensive work going on draft schemes and draft policies … Once he sees that, he will see that a lot of the concerns that he understandably has about representation will be addressed”.—[Official Report, Commons, Public Service Pensions Bill Committee, 8/11/12; col. 269.]

The Minister said he was happy to release some of those drafts. Could I ask the noble Lord the Minister to make those drafts also available to this House to help us in our deliberations? It may be that, as Sajid Javid said, these drafts will in fact help. But until we can see and discuss them, I think that the Minister must explain from first principles why it is wrong to guarantee significant member representation on pension boards by writing this requirement on to the face of the Bill. I beg to move.

[The Deputy Chairman of Committees (Lord Colwyn)]

My Lords, if this amendment were to be agreed I could not call Amendment 35 due to pre-emption.

[Baroness Donaghy]

My Lords, I identify with every word that the noble Lord, Lord Sharkey, said on that issue. In doing so, I shall speak to my amendment about the European directive, which is related to the structure and governance of schemes. In view of the time, I shall give the short version because it is a rather technical issue.

Of course the European directive was intended to have a minimum EU-wide standard for security of benefits, but that was not its sole objective. It was also aimed at improving standards of management and allowing pension fund schemes to play a full part in investment markets. All funded schemes should meet these objectives whether government guaranteed or not.

On the question of legal separation, at present the funds in England and Wales of the Local Government Pension Scheme are not legally separated. They are under the control of the councils that administer them. Most are run by a council committee under local authority legislation. On the issue of the Local Government Pension Scheme meeting the requirements of Article 18, the article states:

“Member States shall require institutions located in their territories to invest in accordance with the ‘prudent person’ rule and in particular in accordance with the following rules … The assets shall be invested in the best interests of members and beneficiaries. In the case of a potential conflict of interest, the institution, or the entity which manages its portfolio, shall ensure that the investment is made in the sole interest of members and beneficiaries”.

Therefore, the Local Government Pension Scheme has its own investment regulations. They do not contain any requirement to the effect of the prudent person rule or to invest in the best interests of scheme members and so are non-compliant with the directive in this respect.

Let me make clear that I am not making any outright criticism of the Local Government Pension Scheme. It has been well run and has the trust of its members. I am aware, of course, that the Minister has said that, in his view, the Government are already fully compliant with the directive. The previous Government, which implemented these articles, also believed that they were fully compliant. I simply make the point that I do not think that is entirely accurate.

The investment regulations of the Local Government Pension Scheme do not contain any requirement to the effect of the prudent person rule or to invest in the best interests of scheme members and so they are non-compliant. Even with the benefit of the directive’s existing legal framework, which is not present in the Local Government Pension Scheme, Parliament has seen the need to provide further protection for members’ interests in particular by requiring the appointment of member-nominated trustees or trustee directors, imposing obligations to provide information to members, requiring trustees to be informed and trained so that they understand their responsibilities, and requiring trustees to appoint professional advisers, whose duty it is to act only for them in situations where there may be a conflict of interest with the employer imposing restrictions on the amount of permissible investment in the employer.

The position under the Local Government Pension Scheme, as matters stand, is completely different. The equivalent of the trustee is the administering authority, which is likely to be a major employer in relation to the fund it manages. Not only that, all decisions taken about investing the fund are taken by councillors, officers and employees of the administering authority or representatives of other employer bodies. There is no provision in the legislation which replicates the duty that trustees owe to their beneficiaries. On the face of the legislation as it stands, therefore, there is nothing to stop the administering authority from taking decisions on investments which prefer its interests and the interests of other employers over the interests of members of the Local Government Pension Scheme. My amendment is therefore necessary to ensure that reform of the Local Government Pension Scheme should address the provisions of the IORP directive.

Budget Responsibility and National Audit Bill [HL]

Lord Colwyn Excerpts

Monday 6th December 2010 Grand Committee

Committee (3rd Day)

[The Deputy Chairman of Committees (Lord Colwyn)]

My Lords, I have the usual announcement to start with: if there is a Division in the Chamber while we are sitting, the Committee will adjourn for 10 minutes.

Clause 4 : Main duty of Office

Amendment 20

Moved by

--- Later in debate ---

[Lord Barnett]

I am sure that the noble Baroness, Lady Noakes, read the website carefully. She did not quote it to me, but I now have the figures, which are a bit disturbing. I will read them with greater care later. Once again, Robert Chote is doing the job that the OBR is being set up to do—to tell the world how good the Treasury is. I had a little experience at the Treasury for five years. Officials are excellent, in my experience. I can see them over there, but they are not nodding, because they would not do that. The noble Lord, Lord Sassoon, can nod on their behalf. He is quite right; they are very good. I always found them to be excellent. However, that does not make the Chancellor right in saying all the things he says, either in introducing the comprehensive spending review or at any other time. I confess not only to being not over the top but to being too moderate in my remarks. I am very concerned.

[The Deputy Chairman of Committees]

My Lords, a Division is taking place. Does the noble Lord feel that he can wind up in 30 seconds, in which case I am sure he can carry on?

[Lord Barnett]

I beg leave to withdraw the amendment.

Amendment 25 withdrawn.