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The noble Lord, Lord Campbell of Alloway, referred to a bipartite arrangement. My concern is that we now have clear evidence that the definition of torture in the United States is not the definition of torture that we understand in the United Kingdom or elsewhere, given that the Vice-President can go on the media and apparently accept water boarding as a reasonable form of interrogation.

I am totally at one, in one sense, with the noble and gallant Lords, Lord Boyce and Lord Inge, in that what really worries me is that commanding officers are being put in an impossible position. That was the concern. We have heard from the noble Lord, Lord Kingsland, that there is no escape from this; the responsibility is clear. That is what subsection (2) of the amendment says—it merely restates the responsibility of commanding officers. The problem is how they handle these things. We have some guidance from the Minister, who says that if they have any reason to suspect things they had better go out there and sort it out. Perhaps that is an advance, but I would prefer there to be a Defence Council instruction that told them what they should do in specific circumstances. It is not a question of telling them to investigate every foreign aircraft that lands; it is a question of giving them guidance that they can turn to.

Even noble Lords have had great problems with establishing who is responsible for what under the Chicago or the Tokyo conventions and so on. We are talking about some poor commanding officer of an airfield, who has to make a judgment. For that, he must have guidance—and that guidance comes in the form of Defence Council instructions. We have not said that the Defence Council has to provide those instructions; we have said that it “may” provide them. Indeed, I hope that it would provide them—but I am unaware of their existing at the moment.

There is also a degree of confusion around your Lordships' House about diplomatic clearances. Unless systems have changed greatly since I was the commander of an operational airfield, diplomatic clearances are done en bloc, with a month’s worth of flights to go to one place or another. That is different from diplomatic immunity—it is the system by which the flights are managed. My great concern is that if we are operating diplomatic block clearances for flights with a nation that has a different definition of torture, we may find that commanding officers are put in an impossible position, to use the phrase of the noble and gallant Lords. We have a duty to offer advice, and this clause would make it clear how that advice should be offered. I beg leave to test the opinion of the House.

5.28 pm

On Question, Whether the said amendment (No. 7) shall be agreed to?



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Their Lordships divided: Contents, 69; Not-Contents, 170.


Division No. 4


CONTENTS

Addington, L. [Teller]
Alton of Liverpool, L.
Attlee, E.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Browne of Belmont, L.
Burnett, L.
Cameron of Dillington, L.
Carlile of Berriew, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Darcy de Knayth, B.
Dholakia, L.
D'Souza, B.
Dykes, L.
Garden, L.
Glasgow, E.
Goodhart, L.
Greenway, L.
Hamwee, B.
Harris of Richmond, B.
Holme of Cheltenham, L.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Kingsland, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Murphy, B.
Neuberger, B.
Newby, L.
Northover, B.
Patel of Bradford, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Roper, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Billingham, B.
Bilston, L.
Blood, B.
Boothroyd, B.
Boyce, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell of Alloway, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dear, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.


6 Nov 2006 : Column 631

Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inge, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
King of West Bromwich, L.
Kingsmill, B.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Morris of Yardley, B.
O'Cathain, B.
O'Neill of Clackmannan, L.
Palmer, L.
Parekh, L.
Park of Monmouth, B.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsbotham, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Vincent of Coleshill, L.
Wakeham, L.
Wall of New Barnet, B.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Williams of Elvel, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.39 pm

Schedule 2 [“Schedule 2 offences”]:

Lord Drayson moved Amendment No. 8:

On Question, amendment agreed to.

Lord Drayson: My Lords, I beg to move that this Bill do now pass.



6 Nov 2006 : Column 632

This has been my first experience of taking legislation through this House, and the reputation of this House for expertise and thorough scrutiny seems to me to be well deserved. This is an experience that I shall always remember, in large part because of the kind help that I have had from all sides of the House. I believe that we have delivered a Bill that the Armed Forces will be pleased with.

Moved, That the Bill do now pass.—(Lord Drayson.)

Lord Boyce: My Lords, at the outset of the Bill, my head told me that it was the right thing for us to be doing, but my heart was not too sure. Over the process, however, I have been convinced that we have a good Bill. I am grateful to the noble Lord, Lord Drayson, and his team, who have guided and helped us and been so accommodating with various ideas. The nature of the debate that we have had, off-site if you like, has helped us to get a Bill that I believe the Armed Forces will welcome.

Lord Astor of Hever: My Lords, I thank the Minister very much for the positive and helpful way in which he has approached the Bill. The Armed Forces Bill is an example of the excellent work that this House performs. Noble Lords from all Benches have scrutinised and improved the Bill for the good of the Armed Forces.

Lord Garden: My Lords, I join in complimenting the Minister on the efforts that he has put in to make sure that we have all been involved at every stage. I, too, thank the Bill team—some of the faces are even familiar from my past—who have done so much to keep us informed and briefed and who have handled the issues so carefully. The MoD does not do a lot of legislation, and I think that it shows in the sense that it follows all the rules, so we get wonderful colourful Keeling schedules that other Bill teams do not provide. I am most grateful.

Lord Lyell: My Lords, I hope that I am still in order if I thank the Minister deeply for all the help that he has given me. I had intended to play a fuller part in the Bill—perhaps your Lordships will get a bit worried—but I was struck down by illness. Nevertheless, I received enormous briefing of all sorts from the Minister and his team, for which I am deeply grateful. You are never away from your Lordships. As I lay in hospital, I received a terrifying 25-minute brief from the noble and gallant Lord, Lord Inge, for which I was extremely grateful. I put on record my thanks as a humble Back-Bencher for the enormous help that the Minster and his team have given to us all. I hope that we have done something to make this a successful Bill.

Lord Craig of Radley: My Lords, I have already said very briefly to the Minister how much I appreciate the way in which he responded to my particular concerns. More generally, the Minister and his bill team have served this House and Members of this House extraordinarily well over this very important legislation. The co-operation, the extensive briefings and the earlier preparations—effectively almost a pre-legislative scrutiny—in which many of

6 Nov 2006 : Column 633

us have been involved have made it very much easier to end up eventually with a very worthwhile Bill. The Minister has devoted an enormous amount of time to this, inevitably, and I hope that he will be able to get back to his day job as Minister for DP very soon.

On Question, Bill passed, and returned to the Commons with amendments.

Baroness Crawley: My Lords, I beg to move that the House do adjourn during pleasure, and in so moving I suggest that business does not begin again before 6.15 pm. In the mean time, I suggest that noble Lords keep an eye on the Annunciator.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 5.44 to 6.15 pm.]

NHS Redress Bill [HL]

A message was received from the Commons, that they disagree to an amendment made by the Lords; they insist on certain other amendments to which the Lords have disagreed; and they have made an amendment in lieu, to which they desire the agreement of the Lords.

The Minister of State, Department of Health (Lord Warner): My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 137 as first printed for the Commons.]



6 Nov 2006 : Column 634

Lord Warner: My Lords, I beg to move Motion A, that the House do not insist on its Amendment No. 4A to which the Commons have disagreed, do not insist on its disagreement to Commons Amendments Nos. 5 and 16 on which the Commons have insisted, and do agree with the Commons in their Amendment No. 16B in lieu.

I am pleased that we seem to have reached agreement on a way forward. The House has discharged honourably its role in scrutinising this Bill carefully, and I am certainly very grateful to the Benches opposite for their constructive approach to legislation that will bring benefits to patients.

Moved, That the House do not insist on its Amendment No. 4A to which the Commons have disagreed, do not insist on its disagreement to Commons Amendments Nos. 5 and 16 on which the Commons have insisted, and do agree with the Commons in their Amendment No. 16B in lieu.—(Lord Warner.)

Earl Howe: My Lords, there are occasions when despite all that has gone before it is right for this House to bow to the will of the elected Chamber. With a considerable measure of regret, I believe this to be one such occasion. Your Lordships’ House has asked the other place to think again; the other place has rejected our amendments on two separate occasions. It is therefore time to let the Bill pass.

I say that with regret because I believe as strongly as ever that the Bill represents a missed opportunity. With a little more readiness by the Government to recognise the point of principle underlying our earlier amendments, and a greater willingness on their part to achieve a meeting of minds, the Bill could have been improved very significantly. I recognise, of course, that the Government have made concessions, and I do not belittle those in the slightest. But the key point of principle that we asked them to consider and agree to is not, in the end, one on which they have seen fit to give way. That is an enormous pity and I believe that the losers from that decision will be patients.

I hope that the Minister will allow me to use this opportunity to ask him a couple of questions arising from the amendment passed in another place today. First, can he give us further details of the intention behind the amendment, because I am genuinely puzzled as to why the amendment is necessary if it is simply to achieve the result described by the Minister in another place? It may be designed to give the critics of the Bill on this side of the House some comfort, and of course I welcome that motivation, if it is that. But, if it is purely about qualifications and experience, the Government could have ensured that those stipulations were met in any event, without the need for an amendment.

Secondly, will there be an opportunity for the Opposition parties to look informally at the draft regulations that are to be laid? It would be enormously helpful if we could be afforded that opportunity to enable us to engage with the Minister on the detail of the regulations at a reasonably early stage.



6 Nov 2006 : Column 635

Thirdly, I should be grateful if the Minister could shed a little more light on one aspect of the redress scheme, which I confess I still find puzzling. That is the issue of privilege. We debated this the last time that the Bill was in this House, and I know that the Minister was trying to be helpful on that occasion. As I understand him, he told us that expert medical reports are not to be privileged, yet any offer made by the NHSLA is to be without prejudice. I still cannot see how those two positions can be compatible. If an offer is made without prejudice it means that it is not to be regarded as an admission of liability for the purposes of subsequent litigation. Therefore, it seems to be a recipe for chaos: someone could go through the redress scheme, receive an offer, reject it with all legal rights intact and walk away, armed with material that would ordinarily be privileged under the usual rules and practice of common law. I question whether what the Minister told us will be achievable in practice.

The point was made eloquently in the Explanatory Notes for the Inquiries Act at paragraph 9, which says,

The solution proposed by the Opposition would have meant that by separating fact-finding from fault-finding the Bill would have provided a conceptual and physical separation between privileged and non-privileged information. Arising from those considerations, my understanding is that in practice fact-finding and fault-finding will amount to two separate processes within the ambit of the scheme. Can the Minister confirm that? If he can, then quite possibly the dilemma that I have just tried to point out may not arise because it would remain possible for the NHSLA to treat some information as privileged and some as non-privileged.

If the investigatory process is single and undivided, it seems inevitable to me that at least some information will have to remain privileged, leaving open the possibility for the authority, without any disrespect to it, to duck and dive behind the concept of privilege whenever it wanted to. As I understand it, that is not what it would want and not what the Government want, and I think it should be avoided if possible.

In the knowledge that the noble Baroness, Lady Neuberger, has some further points to add, I shall leave my remarks there. I want to express my thanks to her, to her colleagues on the Liberal Democrats Benches for their support and to the Minister for his courteous and considerate replies at all stages of the Bill. Putting our apprehensions aside, we genuinely wish the redress scheme all success, not only for the sake of the NHS but also, and more importantly, for the sake of patients.

Baroness Neuberger: My Lords, like the noble Earl, Lord Howe, we have come to the conclusion that having sent the Bill back to another place on two occasions, and it having been returned, we probably now have to rest our case. When we saw Amendment

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No. 16A, published on Thursday, we believed that a major concession had been made, allowing in regulations a definition of the person investigating the facts to be in some way independent of the NHS organisation concerned. It did not state that in terms, but we thought that that might well be the intention behind Amendment No. 16A.


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