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Lord Judd: My Lords, does my noble friend agree that the gravity and urgency of the issue is underlined by the wider concerncentral to our preoccupations in the Houseabout how we win the battle for hearts and minds in our efforts to contain global terrorism by reducing the number of anxious, alienated people on whom extremists can play? It is not simply a matter of our immigration policy and how it is administered; it has implications for that wider issue as well.
Lord Bassam of Brighton: My Lords, I think that we as a country do our level best in tackling illegal immigration, which is at the core of the issue. My noble friend is right: we must be seen to treat people fairly and reasonably, and that is what our procedures aim to do. That is why at any one time we have, relatively speaking, a very small number of people in immigration detention. They are there for particular reasons, and that is quite right. Within the immigration detention estate we try to treat people fairly and properly and ensure that they have proper access to welfare and legal services so that their cases can be dealt with promptly, fairly and reasonably.
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"METHODS OF REDRESS
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The ways in which redress may be sought are through
(a) the National Health Service Litigation Authority,
(b) a specified dispute resolution service independent of the health service in England or Wales as defined under section 6(2A) and (2B),
(c) civil proceedings, and
(d) a redress scheme as defined in this Act."
The noble Baroness said: My Lords, it is some considerable time since Members of this House considered this matter in Grand Committee. The intervening time has been used extremely wiselythe noble Earl, Lord Howe, and I have had the opportunity to meet a number of the professional bodies such as the NHS Litigation Authority, ACHCEW and others. They have generously spent time explaining to us a great deal of the background to the BillI believe that the Minister knows that we have had that information. I think he would agree that that process will turn out to be beneficial to the whole House as we move on to the next stage of the Bill.
At the outset of our proceedings, I apologise for the absence of my colleague and noble friend Lady Neuberger, who noble Lords will know has done a great deal of work on this matter. My noble friend is abroad fulfilling a commitment she had undertaken before she became a Member of your Lordships' House. It is a matter of considerable regret to her that she is not with us, and to me, given her knowledge and expertise on this subjectas will become evident throughout the afternoon.
It is correct at the beginning of our discussions to go back to where we left off at the end of Grand Committee proceedings. Throughout Grand Committee, we returned time and again to our central concern about the Bill: the lack of independence in the process. I put on record my thanks to the noble Lord, Lord Warner, for two lengthy letters that he sent to me and to the noble Earl, Lord Howe, in which he addressed in great detail a number of concerns that we had raised. However, the central point about which we were at odds with the Governmentthe independence of the redress schemewas not addressed entirely satisfactorily in those letters. That is why we have tabled a number of amendments that we will discuss in some detail this afternoon, which set out an alternative way in which the redress scheme could be made to work with greater independence, which we believe is crucial to the integrity of the scheme and the esteem in which patients will hold it.
Those arguments are principally captured in Amendments Nos. 22, 23, 26 and 42. In essence, as I and the noble Earl, Lord Howe, have set out in detail, we take on board some of the criticisms that the Government have made of our earlier proposals and ensure that there is a two-stage process for people seeking redress under the scheme. The first part of that is an independent finding of fact. We will set out later how that should be done. Once a report that covers that finding of fact is made available, someone who wants to take the matter further has a number of options.
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The reason for moving the new clause now is to set out those different optionsthe different means of redress that would be available to anyone who had received a report of a finding of fact that there had been an adverse treatment of them by the NHS. To spell it out, those different means of redress could be the NHS Litigation Authority; a dispute resolution service; the right to go to court, which they retain; or a redress scheme as defined in the Bill.
In proposing the new clause, I make it absolutely clear that although we have reservationsindeed, we disagreeabout the extent to which the Government propose in the Bill that the NHS Litigation Authority be involved in the scheme, we do not suggest that it should not be. There is a role for it to play, as there is for a Resolve-type scheme for someone, once they have had that finding of fact. So the new clause sets out the beginning of the argument that we shall make for the rest of this afternoon. I beg to move.
Earl Howe: My Lords, whether or not the amendment is strictly necessary to the Bill, it seems to me to have its heart in exactly the right place. I have no hesitation in supporting a very great deal of what the noble Baroness said. The new clause has a number of things to recommend it, not least its value as a declaratory statement prefacing what follows. I absolutely agree that patients need to be told at the outset of the grievance process that there is more than one way for them to proceed to seek redress and that the NHS redress scheme, envisaged in the Bill, is but one avenue that they can choose.
But there is another dimension to this. We will discuss in our debate on a later group of amendments, which I shall not anticipate now, although the noble Baroness has foreshadowed them very helpfully, a key bone of contention between this side of the House and the Governmentthe need to separate the two halves of the redress process into its functional constituent parts, and to treat them as distinct.
What will happen initially is that the hospital whose actions have given rise to the application will carry out a factual investigation. It will examine what was done, by whom, and why. In my very firm opinion, this fact-finding investigation should remain just that. It should steer clear of attempting to lay blame or of ascribing legal liability. All that should be for later. It should confine itself to a factual explanation, and I shall say more about that later.
Once the hospital has done this, there is a very strong argument for the patient to be brought right back into the frame. The factual explanation should be presented to him with an apology, where appropriate, together with a clear statement of what lessons have been learnt by the trust to prevent similar errors happening in the future. It will then be possible for the patient to take stock. One option might be to take the matter no further. Another might be to ask the NHSLA to examine fault and legal liability under the Government's redress scheme. Yet another would be to seek a mediated settlement through a Resolve-type process. And another might be to go to court.
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One of the things that has consistently troubled me about the Government's model for redress is that once an application has been made to the redress scheme, and scrutiny of the case commences, the process continues inexorably to its conclusion through investigation, summarising evidence, proposing remedial treatment, assessing fault, and arriving at an offer of financial compensation until finally the NHSLA presents the results as a sort of comprehensive redress package to the patient.
I do not think that that all-in-one process is desirable, for reasons I will come on to later. But I also believe it is not necessary, because in very many cases all the aggrieved patient wants is an explanation, an apology, and a real sense that lessons have been learnt. The money, for a lot of people, is very often secondary. But where the money is not secondary, I believe the patient should be able to choose how he wants to proceed on the basis of the factual investigation.
It is clearly for the noble Baroness to decide how far she wants to press the amendment, and what importance she attaches to it in the context of the rest of the Bill. The Minister will probably say that, in substance, it is unnecessary. However, I hope he will take on board both the rationale and the strength of feeling that lies behind it.
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