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Lord Clement-Jones: I thank the Minister for that reply, which I thought entirely satisfactory in terms of what will be regulated for under subsection (2) of Clause 15. If it comes about in the way she suggests, access to the commission will be entirely as we would have hoped. I do not think that anything she said or I said goes counter to the wish to keep the procedures, particularly since clinical governance will be a quite complicated area, as simple as possible. It is obviously the case that staff will try to gain remedies at local level under local clinical governance procedures. But as a safety valve, when other things fail, the commission may well be a useful port of call. The noble Baroness made clear that that will be available to members of the public, CHCs and staff in an entirely desirable manner. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Earl Howe moved Amendment No. 112:

Page 12, line 17, leave out ("be absolutely privileged") and insert ("have qualified privilege").

The noble Earl said: In an earlier debate I made so bold as to introduce a metaphor involving jungle animals--perhaps it was a little too colourful for the time of night--but, as beasts of the jungle go, "CHIMP" will, without doubt, be a creature wielding considerable power and influence if it so chooses--a power of entry to premises; a power to seize documents and information; a power to breach patient confidentiality in a surprisingly wide set of circumstances, which we will be discussing later; and, as we see from Clause 15(2) and (3), a power to say what it likes about someone and then to charge him for it.

I am sure we all understand that if a body like a commission is set up matters have to be arranged in such a way that it can do its job properly. But, equally, if it is to command universal respect from clinicians as well as patients and the public its powers have to be used responsibly. Many of CHIMP's functions will be advisory, but where it engages in the business of what is sometimes referred to as "naming and shaming"--something that no doubt it will need to do on rare occasions--it is important that it sets about its task in a

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sober, dispassionate, conscientious and expert fashion. It will not rush to conclusions; it will listen to both sides of the case; it will look at clinical treatments and clinical judgments in their full context; and it will take expert advice. The result of that measured deliberation will, I trust, be a published report which commands universal respect and confidence. That is the aim.

The point I want to stress is that it is not simply the result of the commission's work that needs to be right but also the way in which it reaches that result. Clause 15(3) provides for the publication of anything by the commission to have the status of absolute privilege in law. Very few bodies enjoy that privilege in statute. Absolute privilege is conferred by statute on the ombudsman, the MMC, the Director General of Fair Trading and certain statutory tribunals. It means that if something is uttered or written that enjoys the status of absolute privilege, it automatically falls outwith the scope of the law of defamation.

The question posed by my amendment is this: is it appropriate that the commission for health improvement, for all its important functions, should be able to say and write with impunity exactly what it likes about anyone? Qualified privilege, as proposed in the amendment, is a status which confers similar protection to absolute privilege, the difference being that it affords no protection against a suit for defamation if the publication concerned is shown to have been made with malice. To utter something with malice, as I understand the term in law--although I stand to be corrected by those more learned than myself--is to utter it knowing or believing it to be false or with a reckless disregard for the facts. The consequence is that if you say or write something in good faith and advisedly, a court will protect you in any suit brought against you for defamation.

The Government are saying in the Bill that the commission may not even be taken to court. It can say or write whatever it likes, even with a reckless disregard for the truth. But, as I pointed out, a reckless disregard for the truth is the very antithesis of the way that CHIMP will set about its work, or so we hope--and hope is all that we can really lay claim to at the moment. For a body with the extensive powers that it will possess, I believe it is right that the Bill should encourage it to use those powers responsibly.

I am the first to admit that we do not want to provide encouragement to anyone who might wish to try his luck in court by serving a libel writ on the commission, but I put it to the Committee that if the commission is as professional as we would all wish it to be, that is not a realistic anxiety. If the commission is not as professional as it ought to be, then a citizen who believes himself to have been defamed should enjoy the right of recourse through the courts. I beg to move.

Lord Renton: In my opinion my noble friend Lord Howe has moved a very important amendment. I hope that the noble Baroness, even if she cannot give a complete answer today, will consider the matter very carefully. I agree with my noble friend's statement of law. However, as the wording of subsection (3) stands,

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it is not merely a matter of the publication of formal reports, or annual reports, by the commission; the subsection provides that,

    "the publication of any matter by the Commission shall be absolutely privileged".
That must be wrong. It could mean that if a letter is written by the commission or on its behalf which seriously damages the reputation of any nurse, doctor, dentist, health worker, or anyone else involved in the work of the National Health Service, whoever has written that letter can get away with it scot-free. That would be utterly wrong. I cannot believe that that is the Government's intention. If the noble Baroness is going to give a serious answer, perhaps she will say whether an exact precedent can be quoted in support of this provision. I doubt whether she can.

Absolute privilege is very limited indeed. I shall not enumerate the various circumstances in which it may arise. Some examples are reports of parliamentary debates; reports of judicial decisions; documents arising in the course of the law such as in indictment, and so on. To include in the Bill this huge opportunity for serious defamation entering a person's whole life is utterly wrong.

Baroness Thomas of Walliswood: In following the noble Lord, Lord Renton, on such a matter, metaphorically speaking I take my life in my hands. I certainly shall not challenge anything that the noble Lord has said.

I can understand that the Government might wish the commission, in publishing material, making reports and so on, not to be the subject of the kind of challenge that people and organisations might make even if they have been justifiably criticised because that criticism might make them less able, as it were, to attract custom. I can see why the Government might wish to provide that particular privilege. However, at the very least, it lays a considerable burden on the commission. The "naming and shaming" approach that we have seen in other inspectorates in different parts of the jungle (if I may use that expression) has been very damaging to the institutions so named and shamed. Indeed, it has often been entirely irrelevant to the good conduct of those institutions.

At the very least we need some reassurances as to what might result from subsection (4), which provides that,

    "The Secretary of State may give directions with respect to the exercise of any functions of the commission".
What directions, if any, have the Government planned in order to circumscribe in any way the considerable powers that the noble Earl, Lord Howe, and the noble Lord, Lord Renton, drew to our attention in introducing the amendment?

Baroness Fookes: I am not a lawyer. However, this was one of the phrases that struck me forcefully when I first read the Bill. I am delighted that my noble friend Lord Howe has presented this amendment as an

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alternative to qualified privilege. The noble Baroness will have a hard job to prove to me that this is not a right and proper amendment.

Lord Walton of Detchant: This is a matter of fundamental importance. I wholly agree with the remarks made by the noble Earl, Lord Howe, and the noble Lord, Lord Renton. A number of situations have arisen recently whereby the publication on the Internet of documents placed before various public inquiries has given considerable concern as they have been exceptionally critical of various bodies and individuals. I believe that publication on the Internet would be covered by this provision. Qualified privilege is right, but absolute privilege would be totally wrong.

Baroness Hayman: This has been a brief, but deeply felt debate. I have listened very carefully to the opinions that have been expressed. I should say at the start that I concur with the analysis made by the noble Earl, Lord Howe, of the way in which the commission should approach its task. It should adopt a considered approach. There are responsibilities here of a broad and deep order, as well as important areas in which the commission will be able to contribute to public protection.

In the phrasing of the Bill as presently drafted there is absolutely no intention that the provision of absolute privilege should be used as some sort of smokescreen for behaving in a way that is less than proper in these areas. As I am sure noble Lords agree, it is important that the commission is able to be frank and open in identifying areas for improvement. It will be in the best interests of the public for the commission to have the ability to make clear where NHS organisations are failing to meet their statutory duty. It would also be in the public interest that the commission's resources are not unnecessarily diverted into supporting litigation and that the publication of reports is not improperly delayed because litigation is entered into for that purpose rather than any other.

I wish to reassure the noble Lord, Lord Renton, that this provision is not unprecedented. Bodies similar to the commission have statutory provisions of absolute privilege for their reports for the purposes of defamation. That includes the Health Service Commissioner, the Parliamentary Commissioner for Administration, the Occupational Pensions Regulatory Authority, the Director-General of Fair Trading and the local government ombudsman. So this provision is not outwith the line for other bodies operating in similar fields.

Absolute privilege will not be a licence for the commission to act recklessly. It will be bound by the rules of natural justice and will have to act fairly. It will therefore be the general practice of the commission to give an organisation that it proposes to criticise in its report a fair opportunity to comment before publication. It is not the task or aim of the commission to assess or make public a clinician's individual performance. The commission will look at organisations' abilities to provide high-quality care and the systems that are in place. If it finds evidence of poor individual

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performance, it will draw that to the attention of the employing organisation to take action, and may, if appropriate, bring it to the attention of the professional regulatory body concerned.

If a report were to contain defamatory material, an aggrieved individual could seek to prevent publication by seeking an injunction; but by conferring absolute privilege the person would not be able to institute such proceedings. However, in public law the person would be entitled to take judicial review proceedings if the procedure adopted by the commission had been unfair. That would provide some safeguards to the healthcare provision professionals who are the subject of the commission's investigations.

So the provisions as they stand on the face of the Bill are not completely outwith areas of--

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