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Baroness Barker: My Lords, I have listened with great care to the Minister but, as he may have anticipated, he has not managed to convince me. The amendment is in the name of the noble Earl, Lord Howe, and he will decide what to do. I have to say that, from these Benches, what he outlined seems insufficiently independent of the organisations under investigation and would not, in the way that he described it, be subject to sufficient scrutiny by the Healthcare Commission. I believe that the proposal put forward by these Benches is much more appropriate. The noble Lord has outlined a souped-up complaints officer, but in my view that is insufficient for the purposes of the scheme.
Earl Howe: My Lords, I am grateful to the Minister for his reply. Perhaps I may preface my remarks by saying that there is an error in Amendment No. 42. It should refer to the Commission for Healthcare Audit and Inspection; the name has not been printed correctly.
I recognise that the Minister has made a good deal of effort to move at least in part in my direction and I thank him for the obvious thought that he has devoted to these issues. However, he is right to say that we start from different positions. His scepticism about the role of patient redress investigators was overdone.
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He expressed the view that the investigators would not have the necessary skill mix to do their job properly. All I can say is that—to take the well tried model of the coroner—no one would argue that coroners do not have the necessary skill mix to do their job, and very much the same kind of skills are required for patient redress investigators.
The Minister's proposed solution, which I have listened to very carefully, suffers from one principal shortcoming. The question I ask myself is this: how could a member of staff from within the trust command the necessary degree of confidence with the public? He simply will not have the element of independence I referred to earlier. The Minister's offer builds upon the provisions of Clause 10(2)(h), as he said, but because it does so and because the individual concerned would be part of the management team, we are not looking at a sufficiently radical solution to the difficulty here.
There is a major matter of principle. It is that there should be independence in the process and a separation of functions. There is very considerable judicial authority for the need to separate fact-finding from fault-finding. During the Recess, I had the pleasure of reading a number of transcripts of recent judgments in the Court of Appeal which underline this principle time and again. It is a key principle of international jurisprudence.
Lord Warner: My Lords, I hesitate to do this, but I think that I know where this is going. I would like to be sure that the Benches opposite accept that, if they press the amendment, they will add costs of £41 million to this Bill.
Earl Howe: My Lords, I had hoped the Minister would not say that, because I do not accept it. For the life of me I cannot imagine how the appointment of a number of patient redress investigators could conceivably cost £41 million a year. In my view, a sum of a very much lower order would be involved. I suspect that the modelling carried out by the department related to the original proposal put forward by a number of noble Lords, which suggested that, over and above the investigative process undertaken by the hospital trust, there should be another layer of investigators. That, the Minister was right to say, would have created considerable bureaucratic cost. But I do not envisage that this fairly small band of investigators will be expensive to the health service, certainly not to that order of money.
As I have said, we are looking at a major matter of principle here. I take my steer from the Liberal Democrat Benches as well in proposing that we test the opinion of the House on this.
5.30 pm
On Question, Whether the said amendment (No. 22) shall be agreed to?
Their Lordships divided: Contents, 126; Not-Contents, 125.
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Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Attlee, E.
Avebury, L.
Ballyedmond, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridges, L.
Brougham and Vaux, L.
Buscombe, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Craigavon, V.
Cumberlege, B.
Dean of Harptree, L.
Dearing, L.
Denham, L.
D'Souza, B.
Dykes, L.
Elliott of Morpeth, L.
Falkland, V.
Falkner of Margravine, B.
Finlay of Llandaff, B.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Garden, L.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B. [Teller]
Holme of Cheltenham, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Kimball, L.
Kingsland, L.
Knight of Collingtree, B.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maginnis of Drumglass, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Montgomery of Alamein, V.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Northbrook, L.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Patten, L.
Pearson of Rannoch, L.
Razzall, L.
Redesdale, L.
Rees, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Slim, V.
Smith of Clifton, L.
Steinberg, L.
Stern, B.
Stewartby, L.
Taverne, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Tyler, L.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Windlesham, L.
Young of Hornsey, B.
Acton, L.
Adams of Craigielea, B.
Adonis, 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.
Bach, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
Macaulay of Bragar, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morris of Aberavon, L.
Moser, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Randall of St. Budeaux, L.
Rees of Ludlow, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Finsbury, L.
Soley, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
15 Feb 2006 : Column 1185
5.40 pm
Earl Howe moved Amendment No. 23:
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