NHS Redress Bill [HL]

My Lords, a serious anomaly thrown up by the Government’s redress scheme is the confusion that it causes on disclosure and privileged legal information. The NHSLA will be tasked not only with the gathering of factual case evidence about what was done, by whom and why—under the Government’s proposals, at any rate—but also with the logically quite distinct exercise of considering whether the facts of the case give rise to a legal liability in tort and, if so, whether an offer of financial compensation is appropriate. It would be wrong to call the second half of the process judicial or even quasi judicial. It is an in-house consideration of the NHS’s liability resulting, sometimes, in an offer. As such it is barely susceptible to judicial review. Ordinarily, the substance of in-house deliberations of this kind would be treated as privileged information, as would the legal advice underpinning it. Normally any offer of settlement under the redress scheme would be without prejudice. When an offer of redress is accepted, clearly the matter is dealt with and the file is closed. However, when it is rejected, what will be the position of the NHSLA? Will it try to claim privilege under the redress procedures in respect of any subsequent litigation? If offers under the scheme are to be made without prejudice, that suggests that the NHSLA would want to preserve its position on liability. Indeed, there is little point in the offer being without prejudice if the proceedings leading up to it are not privileged. Yet, at the same time, we are told by the Government that they wish the redress process to be as open as possible. In his letter of 20 December, the Minister said that the Government are committed to freedom of information and frank disclosure, but almost in the same breath, he adds that there will also be an element of nondisclosure in relation to documents covered by legal professional privilege. That is a very confused message to give out. The Government have got themselves into this confusion by conflating, unnecessarily in my view, the two logically distinct halves of the redress process: fact finding, where open disclosure should operate under the rules of natural justice, and fault finding, where the rules of legal professional privilege set in. Earlier I referred to the functional incoherence of the Government’s scheme and this is one rather obvious aspect of it. It leads to irrational results. If you separate functions in a logical way, that removes conflicts of interest. I support this amendment, not least because it forces the Government’s hand. If they want the redress process to be open and to mean what they say about freedom of information, this amendment is the way to achieve it.