NHS Redress Bill [HL]

My Lords, I understand the strength of feeling and the rationale, although I do not necessarily accept the rationale behind the new clause, as I will explain. We have had a good rehearsal of the issues in and around independent investigation, and I will set out our views on that when we come to the amendments that are more relevant to that issue. I want to explain why we believe that there are no good reasons for including this new clause in the Bill. The purpose of a Bill of this kind should, of course, be explained, but it should be explained alongside the legislation, not in it. Explanatory Notes have been published alongside the Bill, which make it clear that the scheme is a mechanism for enabling redress to be provided without the need to go to court. We have also published a statement of policy. Again, this makes it clear that the scheme will provide an alternative to litigation. Paragraph 14 states:"““The NHS Redress Bill does not make any fundamental amendments to the existing legal system but augments it by providing patients with the option of an additional mechanism for obtaining redress””." We therefore believe that the purpose of the Bill—that the redress scheme is another way of seeking redress—is fully explained. The problem with ““explanatory text”” such as that set out in the amendment is that it is not clear whether it is explanatory or has new substantive effect. Such clauses can, paradoxically, easily cause more confusion than they were intended to solve. For that reason they should be avoided. If there is no doubt or uncertainty, extra words should not be added to legislation, even when the words are intended to be helpful. The amendment would include an express reference to the right to bring civil proceedings; but that may lead to doubt about whether there is a similar right to bring civil proceedings in other contexts and under other enactments when there is no such stated right. Overall, as I have said, such a clause would not assist people, but cause confusion. The clause would not provide patients with any additional certainty about how redress could be sought in their particular circumstances. Redress may be sought via the redress scheme or by issuing civil proceedings. I believe that it causes confusion to suggest that redress may be sought through the NHS Litigation Authority or through a specified independent disputes resolution service. The NHS Litigation Authority manages claims against the NHS by administering the clinical negligence scheme for trusts; it manages claims where civil proceedings have been initiated; if there is no right to bring civil proceedings, the NHS Litigation Authority will not administer the claim. The amendment seems to suggest that redress via the NHS Litigation Authority or via a dispute resolution service are two alternative routes for seeking redress, even though those routes depend on the right to bring civil proceedings. There are a number of other such reasons why we think the amendment causes confusion. I am very happy to set those out in more detail in writing to noble Lords rather than detain the House further. I am not clear, for example, whether the amendment is intended to create a new specified disputes resolution procedure independent of the health service in England and Wales. It could be interpreted in that way. Setting up a new independent specified dispute resolution service would require wide consultation; it again raises questions in terms of costs and administration, none of which has been addressed. The inclusion of this allegedly explanatory clause at the beginning of the Bill would therefore add complication and confusion. I suggest that we do not proceed with this proposed new clause. We will have our debate about investigation and independent investigation later, but in the mean time I have to say that we consider the amendment highly inappropriate.