Covid-19

Lord Pannick Excerpts

Monday 15th November 2021 Lords Chamber

[Lord Kamall (Con)]

The noble Baroness raises a very important point and I apologise for not spotting it and answering it earlier. Many noble Lords will be aware of the very sad story of a young lady who died because she felt that the vaccine was not safe; her mother is encouraging other pregnant women to have the vaccine. For that reason, we want clearly to communicate that the vaccine is safe and will not affect fertility, so getting the vaccine is the best way to protect yourself. Pregnant women are more likely to get seriously ill from Covid-19, and we know that vaccines are safe for them and make a huge difference. In fact, no pregnant woman who has had two jabs has needed hospitalisation with Covid-19. We need to make that clearer, and I will take this back to the department and the Government to make sure that we communicate more clearly. We all share the same will to share that message more widely.

[Lord Pannick (CB)]

On the NHS app, it is not simply the inconvenience to those travelling but the waste of time of NHS practitioners who are being asked to provide letters to people who are travelling. It is vital that the Minister uses his best endeavours to make sure this problem is resolved very speedily. My understanding is that those of us who travel with children under the age of 16 who have had one jab have no means through the NHS app of proving that they have had the vaccine. Is that right? If so, can the Minister do something about it?

[Lord Kamall (Con)]

The noble Lord’s first point repeats what other noble Lords have said, but for a good reason. I hope that our mentioning this more than once this evening stresses to the NHS and NHSX that it must be sorted out as soon as possible. As I said, I had hoped to have a date to announce this evening, and I am as frustrated as everyone else. We all want to travel and, importantly, there are countries that require proof of the booster.

In terms of children travelling, a solution has been developed to allow fully vaccinated children aged 12 and over to demonstrate their vaccination status. Up to now, some countries have required no proof from children aged 12 and over, but I am being told that a solution is being developed. I will try to push for that date as well, but I definitely want to get a date for when the booster will appear on the NHS app. All I can do is apologise that we have not done this yet.

Covid-19 Vaccinations

Lord Pannick Excerpts

Monday 8th November 2021 Lords Chamber

[Lord Pannick (CB)]

The Minister mentioned the importance of the booster dose. Can he explain why the valuable NHS app does not prominently display that the individual has received a booster jab, as is the case with the first two doses? The information is hidden away on the app and cannot be downloaded. This is a serious defect because some foreign countries—the Minister mentioned Israel, which is one example—now require proof of a jab in the past six months, given the waning effect of earlier doses. There are many domestic contexts where the ability to prove easily that you have had a booster dose would be valuable.

[Lord Kamall (Con)]

I thank the noble Lord for that question. I have been made aware of this by more than one noble Lord today. I contacted NHSX; it said that it is looking into it and trying to work on a fix as soon as possible. If the noble Lord is aware in a couple of days that that has not been fixed, I hope he will remind me so that I can prompt NHSX.

Covid-19: Vaccinations

Lord Pannick Excerpts

Thursday 17th December 2020 Lords Chamber

[Lord Bethell (Con)]

I am grateful to my noble friend for his championship of this important point. It is not necessarily the role of the department to rule on this matter, but I note that UK Anti-Doping welcomed the World Anti-Doping Agency’s publication of its view on the vaccine. We welcome that moment and I very much hope that it provides the reassurance that athletes are looking for.

[Lord Pannick (CB)]

My Lords, my mother-in-law is 84 years old. That sounds like the beginning of a bad joke but it is not funny because she has serious health concerns and is very high risk. Over the past couple of weeks, my wife has repeatedly telephoned her NHS GP practice in north-west London—I will not name it, although I am happy to tell the Minister which it is. Staff there say that they have no vaccine, no information about when they can expect to receive the vaccine, no guidance from the Department of Health and no protocols. Does this not support the concern expressed by the noble Lord, Lord Harris, that there is a real danger of the Government underperforming yet again in this context?

[Lord Bethell (Con)]

I hear the concerns of both the noble Lord and his mother very clearly but I assure him that, to date, the rollout has very much focused on the 70 hospital hubs where we are getting the protocols and practices about getting this extremely difficult vaccine into people’s arms correct before we roll out distribution to all GP services. It is not at all my expectation that every GP service in the country will have the vaccine, nor that they will necessarily be ready to deliver it this week, but that guidance has been distributed. If the noble Lord would like to send me the details, I will ensure that that GP practice is up to speed on this important matter.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 23rd January 2015 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I declare my interest as professor of surgery at University College London and as a member of the General Medical Council, although I do not speak for the council in this Chamber.

I thank the noble Lords, Lord Winston and Lord Saatchi, for having tabled this important amendment. It goes to the heart of good medical practice, of course, always to innovate—but always to innovate, first and foremost, with absolute regard to patient safety. The fact that the amendment will now appear in the Bill will provide absolute clarity on what is required to discharge that patient safety responsibility with regard to innovation, as described in the Bill, which is vitally important. I strongly support the amendment. Once again I thank the noble Lord, Lord Winston, for his contributions in the passage of the Bill and, in particular, for tabling this important amendment.

[Lord Pannick (CB)]

My Lords, I, too, welcome the amendment. It will further emphasise that, in order to be lawful, medical innovation must be responsible. The criterion of responsibility has been the essence of the law on this subject since the judgment of Mr Justice McNair in the Bolam case in 1957, when he said that a doctor,

“is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.

That may provide some reassurance to the noble Baroness, Lady Gardner of Parkes, that the courts will easily understand what is involved in the amendment.

The amendment will reassure many of those concerned about patient safety. The words will further confirm what I understood to be the Minister’s statement in Committee that the Bill is not intended to alter the substance of the Bolam test but to provide a practical means by which innovative doctors can take steps in advance of carrying out the treatment.

Like the noble Lord, Lord Winston, I am less confident than the noble Lord, Lord Saatchi, that this Bill will have much, if any, beneficial effect. I am doubtful that the fear of litigation deters responsible innovation, but I have been reassured by the amendments that the Bill will certainly do no harm. I thank the noble Lord, Lord Saatchi, for the responsible manner in which he has responded to concerns about the Bill by welcoming amendments of this sort. I also thank Mr Daniel Greenberg, a former parliamentary draftsman, now an expert consultant, for the assistance that he has provided to many noble Lords, including myself, on the issues raised.

[Lord Dykes (LD)]

I hope my memory is not at fault when I recall that I have attended all the previous stages of this Bill but deliberately not spoken because I preferred as a lay man to listen to what the medical experts were saying. We have had considerable testimony from them in the previous stages which has helped us make progress. I thank the noble Lord, Lord Saatchi, again. I know it has been done before but it is important to record our thanks for his introduction of this extremely interesting legislation, which will be very useful and important to humanity in the future—although it is difficult at this early stage to tell exactly how it will develop and the noble Lord, Lord Pannick, is right in expressing certain reservations about it.

We all have experience of the sufferings of friends and families in cancer cases and the Bill, not only in a moving way but in a scientifically respectable way, makes progress in widening the ability of medical experts, operating under the strict safeguards that have been agreed in the previous stages, to make sure that people can be helped more than the already marvellous help that doctors give within the existing framework. I am glad to support the amendment.

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[Earl Howe]

I am grateful to the noble and learned Lord. Obviously, I must take account of his expert view, but the fear that I was about to articulate is that if you require a doctor to register the details and results of whatever innovative treatment he or she may have administered on some kind of data-capturing scheme in the way suggested by the noble Lord, Lord Hunt, that would constitute part of the requirement for the doctor to demonstrate that he or she has acted responsibly, and thus not negligently. Therefore, if the amendment were accepted, the result could be that a failure to record would be part of the picture when deciding whether a doctor had acted negligently.

If that point is accepted—I expect the noble Lord, Lord Pannick, to take me to task on it—my submission is that that would be a disproportionate requirement.

[Lord Pannick]

I understand the noble Earl’s concern that if there is an obligation to report the results, that might have an effect on the common law Bolam test, but surely it would not, because of the contents of Clause 2(1), which states:

“Nothing in section 1 … affects any rule of the common law to the effect that a departure from the existing range of accepted medical treatments for a condition is not negligent if supported by a responsible body of medical opinion”.

I therefore understand that under the Bill—the noble Earl can tell me whether I am right or wrong—the doctor has two means of defending himself or herself. One is the Bolam test at common law; the other is to take advantage of the procedures of the Bill. If one of the procedures of the Bill is a duty to report, that does not affect the general Bolam test under Clause 2(1).

[Earl Howe]

My Lords, I take the point made by the noble Lord, Lord Pannick. My point was not that the amendment would alter the effect of Clause 2(1). It would not have an effect on the common law, but it would create a more burdensome test under the Bill. That is troublesome to me, because to do that would in itself impose requirements which go beyond the current Bolam test of negligence. It would mean that the test of clinical negligence was more burdensome under the Bill than under the common law.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 24th October 2014 Lords Chamber

To what I am sure will be the great relief of noble Lords, I think that I have come to the end of this group of amendments.

[Lord Pannick (CB)]

My Lords, I have tabled a number of amendments in this group and I thank the noble Lord, Lord Saatchi, for his helpful responses to them. The purpose of my amendments is to ensure the protection of vulnerable and often desperate patients and their families. Amendment 10 seeks to introduce a test of reasonableness and proportionality. The noble Lord, Lord Saatchi, said in his comments that reasonableness and proportionality are central to the objectives of the Bill. Perhaps I may explain my concern.

The Bill uses the concept of “responsible” innovation. Clause 1(3), along with Amendment 12 in the name of the noble Lord, Lord Saatchi, which he has rightly described as crucial, would define responsible innovation by reference to process; that is, obtaining and taking account of the views of others, considering the risks and benefits, and securing transparency. My concern is that this is insufficient because it says nothing about the substantive content of the decision of the doctor to innovate. Amendment 10, which has the support of the noble Lords, Lord Winston and Lord Turnberg, would provide that innovation is lawful only if it is “reasonable and proportionate” in a substantive sense. It must be reasonable in the sense that the course of innovative treatment should be based on a reasoned decision, that in the light of some evidence the treatment has some prospect of success, and proportionate in the sense that in the patient’s case and taking into account the existing available treatments, the innovative treatment is not likely to cause pain and suffering that is unjustified by the prospects of success. Plainly, this is going to depend, and will necessarily depend, on the circumstances of the individual case.

At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see is in his place, said at col. 1457 that in the context of innovation, it is very difficult to see how you can assess the “reasonableness” of treatment. With respect, I do not accept that. You assess the reasonableness of an innovative treatment in a substantive sense by asking whether there is some evidence to suggest that the treatment will or may have a positive result. I think that reasonableness and proportionality are as important in the context of terminal illness as they are in any other context. Unreasonable and disproportionate medical treatment can cause pain and suffering and it can of course blight the remaining time that patients have with their families.

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Moved by

[Lord Pannick]

2: Clause 1, page 1, line 2, after “encourage” insert “reasonable and”

[Lord Pannick]

My Lords, Amendment 2 refers again to the concept of “reasonable” innovative treatment. I will be very brief on this. First, I am reassured by the comments just made by the Minister that as a matter of law, “responsible” and “reasonable” in this context have the same meaning. Secondly, I am persuaded by the noble Baroness, Lady O’Neill of Bengarve, that we do not also need a criterion of proportionality in this context.

Thirdly and finally, the noble and learned Lord, Lord Mackay of Clashfern, pointed out that in this context of innovation there is of course by definition a limited amount of information already available. That is why innovation is required. My concern is that to justify the innovative treatment, especially if it causes further pain and suffering, it needs to be based on some evidence or at least on a rational judgment that there are some prospects of success. I should also mention Amendment 4, which would leave out the concept of “reckless” treatment. I note that the noble Lord, Lord Saatchi, has added his name to a similar amendment: Amendment 5. I beg to move.

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[Lord Saatchi]

My Lords, I thank my noble friend the Minister for what he said. I think that there is a consensus on Amendment 5 in my name, that of the noble Lord, Lord Turnberg, and that of the noble Baroness, Lady Finlay, to remove the word “reckless”. I think that we are agreed on that. My noble friend dealt with the point under Amendment 3 from the noble Baroness and the noble Lord. We understand the wish to exclude certain treatments and types of surgery, and perhaps that is something that we can discuss between now and Report.

I share the Minister’s wish to accept Amendment 4 from the noble Lord, Lord Pannick, which removes the reference to deterring quackery from the purpose clause. We are agreed on the view that, if the noble Lord, Lord Pannick, believes that it is important to confine the purpose clause to the positive, we should not insist on the inclusion of both limbs—positive and negative—since as a matter of law the negative flows naturally from the positive in any event. If the noble Lord, Lord Pannick, presses that amendment, I shall support it.

[Lord Pannick]

I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Pannick]

4: Clause 1, page 1, line 3, leave out “(and accordingly to deter reckless irresponsible innovation)”

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[Lord Giddens]

My Lords, the noble Lord, Lord Saatchi, knows that I support the thrust of the Bill but there are issues around some of these amendments that the noble Lord might at least listen to.

As I have mentioned previously, one of the core things about this legislation, given its sensitive nature, is that we have to comb through it all the time for possible perverse consequences. At the risk of sounding like sociology 101, unintended consequences are different from perverse consequences. Unintended consequences can be good or bad; perverse consequences undermine good intentions and reach the opposite result of what an individual needs to achieve. For example, strong rent controls were introduced in New York City to help poor people; in fact, they adversely affected them because they could not find places to live. The noble Lord says that the Bill is crystal clear in its intent, but that is not enough because there is a massive difference between intent and consequence. I therefore feel that as a general principle we should comb through the whole Bill to try to spot possible perverse consequences.

On the whole, with the reservations that have been noted, I support Amendment 6 because it might help to block off some of those reservations. We surely must know what innovation actually means in the context of clinical practice. Without such specification, one can see that various perverse consequences could occur. What would happen, for example, if a doctor was accused in court of failing to innovate because he or she did not try some eccentric form of treatment that was available? One could block off that perverse consequence by specifying, in the way that Amendment 6 tries to do, what actually counts as innovation.

I feel strongly that as the Bill proceeds through Parliament we must tighten every loophole that could lead to a situation in which, to some degree, the Bill undermines what it is actually supposed to achieve—helping vulnerable patients in a situation in which they are often desperate by bringing innovations to them that they would not have had available before. However, I fear that some of those things could happen if one was not aware of the minefield of perverse consequences. If we do not examine it all carefully, there could be consequences that, to some degree, undermine the purest of intentions with which the legislation is introduced.

[Lord Pannick]

My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.

[Lord Mackay of Clashfern]

My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.

Care Bill [HL]

Lord Pannick Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

This is my first intervention on this Bill. It is not an area of government policy in which I have historically taken a lot of interest so I am some way outside my comfort zone. However, when I saw that my noble friend Lady Byford had put down two amendments about financial records and appropriate billing, both areas I have taken an interest in, I felt I should support her and put my name to them.

I fear that if I could glance over at the speaking note prepared for the Front Bench on Amendment 92ZFA, I would see the words, “Resist on the grounds that this is unnecessary and the clause already provides for it”. That may be so, but if you read the Explanatory Note to Clause 41 carefully, at paragraph 230, I am not sure that it actually places a duty on the local authority to follow up complaints where they are made by external parties, such as one holding a power of attorney, as my noble friend mentioned in her opening remarks. If would be helpful if my noble friend on the Front Bench could give some reassurance on this point and also for the record confirm, as I am sure must be the case, that people holding powers of attorney are “representatives” as defined in this clause.

The new clause inserted into the Bill by Amendment 92ZFB is a much more significant development. If the Minister’s officials were to call for and examine a range of the invoices sent to individual residents or patients by different companies for the provision of care services, she would see a considerable variation in the quality and, above all, the clarity of how the charges are laid out and calculated. To be fair to the companies, it is not easy to do because it becomes quite complex, quite quickly. For example, local authority rebate periods do not always coincide neatly with the charging periods of the individual care homes. Then there are the charges for extras over and above normal care. In the vast majority of cases these are entirely legitimate but, if you look at the records and the way they are laid out, all too often they are not clearly itemised and often a one-line entry, “Additional Charges” on an invoice received perhaps a month later makes it very hard to verify the accuracy or otherwise of the charge.

We need to keep at the forefront of our mind the fact that these invoices are addressed to elderly people who perhaps are more easily confused or may be browbeaten. In particular, if they have no relatives or representatives to help them, they may be over-ready to accept the invoices at face value and pay them. I particularly support my noble friend’s amendment because it seems to address three important objectives. First, it encourages the emergence of best practice among care homes and the way they lay out their charges. Secondly, it helps individuals and their families understand what is being charged and whether it is accurate. Thirdly, and possibly most cynically, it reduces any temptation to pad invoices with additional items. I do not suppose for a moment that the precise wording of this amendment meets the standards required by parliamentary draftsmen. However, I hope when my noble friend comes to wind up she will consider it an idea worth following up.

[Lord Pannick]

My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.

As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.

I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.

I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.

[Lord Warner]

My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.

We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.

Mental Health (Approval Functions) Bill

Lord Pannick Excerpts

Wednesday 31st October 2012 Lords Chamber

[Lord Pannick]

My Lords, there is undoubtedly a problem which needs to be addressed by emergency and retrospective legislation. I am very grateful to the Minister for explaining the background circumstances. It is very regrettable, indeed astonishing, that this problem has arisen but it has and we need to deal with it.

Your Lordships’ Constitution Committee, of which I am a member, considered the Bill this morning. Your Lordships do not have a formal report from the Constitution Committee because of the urgency but perhaps I may mention two points that we discussed. First, the committee noted with satisfaction that the Explanatory Notes to the Bill address all the issues which the committee advised in its report on fast-track legislation should be addressed by the Government when bringing emergency legislation before the House. We are very grateful for that.

The second point is more substantial. The terms of Clause 1(1) are very broadly defined indeed. They are not confined to the particular mischief which has caused the problem—that is, the actions of strategic health authorities in purporting to delegate the exercise of approval functions to the NHS mental health trusts and the consequent acts of those trusts in granting the approvals. Clause 1(1) is not confined to addressing that mischief which, as I understand it, is the mischief that has prompted this emergency and retrospective legislation. Instead, subsection (1) says that “Any person”—the noble Earl explained that that is deliberately wide and undefined—who has purported to exercise an approval function,

“is to be treated for all purposes as having had the power to do so”.

Clause 1(1) would appear to validate any action in the purported exercise of the approval function, provided it was done before Royal Assent, even though there was a lack of legal power—however that lack of legal power may have been caused and whatever the extent of the legal impediment. Clause 1(1) is not confined to the mischief of the possibly unlawful delegation of powers that causes this legislation to be brought forward.

I appreciate that Clause 1(1) has limits; it is confined to the approval function and it is not prospective, as the Minister emphasised. However, it is very broad in retrospectively validating any lack of powers in the purported performance by anyone of the approval function, whether or not it has anything to do with the delegation function that has been identified in the circumstances. This point was raised in the other place yesterday by Mr Andy Burnham for the Opposition, at col. 205 of Hansard. I have to say that the Minister’s reply was not convincing; he did not address the point. Your Lordships’ Constitution Committee expressed concern at our meeting this morning at the breadth of Clause 11, recognising as we did, I repeat, the need for retrospective emergency legislation in this area.

Why does Clause 1(1) not limit the remedy to the mischief—for example, by including at the end of Clause 1(1) the words “whether or not strategic health authorities had legal power to delegate the exercise of an approval function to an NHS mental health trust”, or something like them? I suggest that such legislation or something like it would implement the object of this emergency legislation but without purporting retrospectively to validate any and all other abuses of the approval function, if any, whatever the consequences may be for people who may have been unlawfully detained for any other reasons relating to the exercise, or the purported exercise, of the approval function.

I respectfully suggest to the Minister and to the House that emergency and retrospective legislation, particularly in a context such as this, concerned as it is with a very vulnerable section of our society, should be carefully drafted and limited in order to confine the remedy to fit the mischief. It would be most regrettable if the emergency legislation, by curing the delegation irregularity, were incidentally—and, I am sure, unintentionally—to prevent legal action by people who may have been unlawfully detained by reason of an unreasonable or improper use of an approval function, which has nothing to do with delegation.

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[Earl Howe]

My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.

It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.

I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.

[Lord Pannick]

My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

Health and Social Care Bill

Lord Pannick Excerpts

Tuesday 13th March 2012 Lords Chamber

[Earl Howe]

My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.

[Lord Pannick]

Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.

[Earl Howe]

No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.

I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission’s consultation last year and has already featured in the commission’s discussions. The Government’s view is that the receipt of the commission’s final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.

I recognise the noble Baroness’s point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act. However, that does not change my argument. As the noble Lord, Lord Low, reminded us, the 2008 amendment was necessary in order to overturn the contrary court judgment in the case of YL, but the Government at the time deliberately resisted any wider change for the very reason that I am resisting wider change today. I realise that my response is not the one that many noble Lords wish to hear.

Health and Social Care Bill

Lord Pannick Excerpts

Wednesday 7th December 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, it is important to spend a moment or two explaining the purpose of a risk register. One of the difficulties that has arisen over recent years is that risk registers have been used in the planning of long-term substantial projects by both the last Labour Government and the present coalition Government. When a risk register is produced, the effort is to consider all the contingencies—some of them highly unlikely—which might arise in relation to that project. There will certainly be some information in that category that would enable the discussion of any Bill of sufficient significance passing through Parliament to be treated with better knowledge than might otherwise be the case. It is also true that under the terms of the relevant legislation, particularly under Section 35(1)(a), there is an exemption category which allows those registers that directly affect policy formulation to claim an exemption from the output and effect of information legislation.

What we now know happened in this case is that when the Information Commissioner considered the point put to him by the original seeker after information, he had to weigh up on the one side the exemption argument and on the other side the argument of the public interest. He himself indicated in his original findings in early November this year that it was a very narrow balance, but that he believed, as the noble Baroness has said, that the issue was sufficiently in the public interest for him to overrule the exemption. There is a legislative right to appeal, of course, and that right to appeal was taken up by the Department of Health on the grounds that this is to do with policy formulation and therefore falls within the exemption. It asked the commissioner to overrule the application. The commissioner decided to uphold the application on the balance of considerations both ways, and the Department of Health then decided to use its right to appeal and it is that appeal which is now about to come before the tribunal. My understanding is that both sides in this argument, the complainant and the defendant, have asked for more time in order to prepare their cases. Only after that will the tribunal be able to make a ruling.

Along with the noble Baroness, I am of the view that it would be helpful to the Report stage of this Bill to have as much information as can possibly be made available. However, the proper way to do that is to allow the tribunal to reach a judgment. My understanding is that if both parties to the tribunal were to request a decision to be made as quickly as possible after the cases have been prepared, the tribunal might be agreeable to a rapid decision. That is very important because nothing can happen before such a decision and it would be unfortunate for the House if the result was not known well before the Bill reaches Report.

I ask the Minister whether he could consider such a joint approach to the tribunal, recognising fully that the two sides must be able to prepare their cases, to see whether it could not act much more quickly than is its usual practice in order to allow the House to have the information if, indeed, the tribunal decides not to uphold the appeal. If it does uphold the appeal, it will then of course be a different case and there will not be any further argument about it. I put that to the Minister because I believe it is very important to settle this issue quickly. I fear that it may hang like a dark shadow over the whole of the Report stage. It must be decided one way or another either before or very soon after the Report stage begins when the House resumes in the new year.

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

[Lord Clement-Jones]

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether we support the Department of Health’s right to appeal against the Information Commissioner’s decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the “safe space” argument: the importance of government having the freedom to debate policy and make decisions,

“without being hindered by external comment”.

Secondly, there is the “chilling effect” that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

“the frankness and candour with which relevant parties make future contributions to that particular policy debate”.

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department—and I believe that these are genuinely held—it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend’s suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal’s case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department’s willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.

[Lord Pannick]

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

[Lord Mackay of Clashfern]

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.

Public Bodies Bill [HL]

Lord Pannick Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to Amendment 1. As the noble Lord, Lord Hunt of Kings Heath, said, at Report your Lordships rejected an amendment in the name of the noble Lord which would have required public consultation in all cases covered by Clause 10. Your Lordships rejected the amendment because the Minister argued that it cannot be appropriate and proportionate for a full public consultation to be undertaken on the implementation of all exercises of power under the Bill, however limited they may be. However, he also said:

“The Government support the principle behind this amendment, which is to ensure that the public are given an opportunity to make their views heard on the reform of public bodies.—[Official Report, 4/4/11; col. 1555.]

Amendment 1 would achieve that objective. It would ensure that the public were able to inform themselves of all proposals for change and were able to contribute to the debate if they wished. The amendment would therefore promote accountability, and it would do so at no cost or inconvenience to the Government.

The Minister may say that the amendment is unnecessary as this is so obviously sensible as a practice that the Government would do it in any event. However, a ministerial assurance given, I accept, in good faith cannot bind Ministers in this or any future Government. Even after the very welcome amendments that have been made to the legislation in this House, the Bill will still confer very extensive powers on Ministers over public bodies, and it is therefore important to make clear in the Bill the essential obligation contained in this amendment.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, for bringing back these issues because it gives me the opportunity to clarify the Government’s position. As they say, Amendments 1 and 6 revisit the issue of consultation and so I shall respond to them together.

Amendment 1, to which the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, have spoken, would require Ministers to publish the proposed reform on their department’s website or to otherwise make it publicly available in the event that a full public consultation was not to be undertaken. This is a helpful amendment and one that speaks to an important principle, so I thank noble Lords for bringing it back at Third Reading.

I said on Report that I thought that this was something that the Government could consider, and I can assure your Lordships’ House that we have done so. Supportive as we are of the objective behind this amendment, on balance, we do not believe that such a requirement is appropriate on the face of the Bill. We are debating ostensibly an issue of guidance and best practice, not imposing a legal requirement. For that reason I am able to support the purpose of the amendment but not its inclusion in the Bill. Given that I believe that this is an issue of guidance, I am happy to give a very specific assurance that the guidance for use by officials on making orders under the Public Bodies Bill, to be published by the Cabinet Office, will include a specific reference that departments ought to consider the most appropriate way of making a proposal publicly available.

The Government are committed to increasing transparency and accountability across the public sector. I do not believe that I can honestly stand here and say that I oppose the purpose of the amendment and still be true to that overall objective. I fear that our only point of divergence is on how to ensure that this purpose is reflected in the best way possible when Ministers are developing proposals and drafting orders. It is the Government’s clear judgment that a more practical and proportionate way of achieving the noble Lord’s objective is to capture this issue in the guidance which will be used by departments when bringing forward orders. On Report, the noble Lord, Lord Hunt, described my pledge to take this back to my colleagues in government as “handsome”. I hope that he will not now consider this an ugly conclusion by the Government. I can assure him that the principle of making proposals publicly available is one on which all sides of the House agree.

I should like to make one further observation on the noble Lord’s amendment. I agree that, in 2011, a website represents a very sensible vehicle for making proposals publicly available; indeed, I should expect departments seriously to consider whether website publication is not appropriate for publicising their proposals. However, my crystal ball will not tell me whether this will be the case for ever. Technology moves on. The statutory framework for consultation on this legislation is set out in Clause 10, and it is intended to be a stable and firm statutory requirement for reforms long into the future. It is guidance, not the statue book, that can be readily updated to reflect whatever is most appropriate at given times. That provides further weight to the argument that, however sensible this amendment might seem, it is not an appropriate addition to the Bill.

I am disappointed that I cannot be more supportive of the noble Lord’s amendment. I know that it is a sincere attempt to improve the Bill and to help the Government deliver a comprehensive and watertight piece of legislation. However, the vote on Report made it clear that consultation must not always be full public consultation and that a Minister must ultimately be responsible and indeed accountable to Parliament for deciding how to undertake proportionate and meaningful consultation. It is therefore not appropriate to seek to alter this legal framework through the noble Lord’s amendment.

I shall now turn to Amendment 6 in the name of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt of Kings Heath. This proposed amendment to Schedule 1 in practice concerns the issues of consultation and subsequent procedure, set out in Clauses 10 and 11, and how they might apply to the closure of the regional development agencies. I shall start by once again taking the opportunity to pay tribute to the work of the RDAs. I also acknowledge that the noble Lords have a strong regard for the work that the RDAs did and would prefer them to continue.

We have had very thorough debates in the House, in Committee and on Report, on the RDAs. The noble Lord, Lord Hunt, referred to these debates. I have explained that the Government's strong preference is to abolish the RDAs, and I have set out the reasons behind this, including why the current arrangements are no longer sustainable. The coalition agreement, the June 2010 Budget Statement and the local growth White Paper are equally clear about the Government's proposal to abolish the RDAs. The Government continue actively to engage with RDAs and interested parties on how closure is to be achieved. Individual RDAs have been in touch with their stakeholders, for example about their asset plans. The consultation and engagement are taking place irrespective of the requirements in the Bill.

I have listened to the arguments for the reform of public bodies to be an open process. Clauses 10 and 11 underline the Government’s desire for this to be the case. Clause 10 requires a Minister to consult on a proposal to which an order made using the Bill would give effect. The amendment proposes that in the case of RDAs, the explanatory document that accompanies an order should include, first, the question that was asked about the principle of abolishing RDAs and, secondly, a summary of the representations received on that question.

The requirements of Clause 10 on a Minister to consult when making an order covered by the Bill are clear. The requirements applied to the RDAs would oblige the Government to ask about the principle of abolition. Similarly, Clause 11(2)(d) requires that any explanatory document should include a summary of representations received in consultation. Therefore, I do not believe that the amendments in this group would provide any additional information for Parliament. Instead, they would unnecessarily complicate the drafting of the Bill. I hope that, in the light of the clarification that I have given with regard to the existing requirements—