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Amendment, by leave, withdrawn.

6.15 pm

Clause 111 [Powers of Secretary of State and devolved administrations]:

Lord Darzi of Denham moved Amendment No. 58:

On Question, amendment agreed to.

Clause 116 [Co-operation between prescribed bodies]:

Baroness Thornton moved Amendment No. 59:

The noble Baroness said: My Lords, it would be convenient also to consider Amendments Nos. 75 and 76.

On Amendment No. 59, we had an extremely useful debate in Grand Committee about the power in the Bill to allow healthcare organisations to share information with healthcare workers. Noble Lords focused particularly on sharing information which may be unsubstantiated at the time of sharing and where information may show a threat to a patient’s safety. In Grand Committee there was some recognition that it could sometimes be justified to share information that suggests, but may not in itself be sufficient to prove, a possible threat to patients’ safety. An example we discussed was an extreme value on a clinical indicator. I was pleased about the degree of consensus on this point but I also took away from the debate some important points made by noble Lords about getting the balance right between protecting patients and ensuring the fair treatment of practitioners.

I have therefore looked at how we might reassure noble Lords that the careers of healthcare workers will not be prejudiced by sharing information that includes unsubstantiated allegations. That is why I have tabled government Amendment No. 59, which requires the appropriate Minister, in making regulations that will set out in detail how information can and should be shared, to have regard to the importance of avoiding unfair prejudice to healthcare workers against whom unsubstantiated allegations are made. This means that the rights of healthcare workers will have to be taken fully into account when making the regulations which will, after all, determine how this provision works in practice. I hope noble Lords will welcome this.

Turning to Amendments Nos. 75 and 76, during our debate in Grand Committee on the piloting of legally qualified chairs, concerns were raised about how such a pilot could be run in a way which would be fair to the individual practitioner. In response to these concerns, I gave an assurance that the Government were satisfied that there are a number of ways in which a pilot could be run fairly and sensibly. While not

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wishing to rehearse the important and detailed debate we had in Grand Committee, I am happy to repeat that assurance today. Having said that, I looked at the points that noble Lords raised and I appreciate that, notwithstanding my assurances, it may be difficult for them to be fully at ease with these provisions without seeing the detail of the proposals.

In order to address these concerns, I did not want to remove the option of piloting from the Bill, as doing so would be removing a valuable optional mechanism for OHPA to use to help it to make evidence-based decisions on which cases might benefit from having legally qualified chairs. Instead, I have tabled a government amendment to ensure that, if OHPA decides to make rules which include piloting provisions, they must be subject to the affirmative resolution procedure. This means that your Lordships’ House will have the opportunity to debate the detail of how OHPA would like to run the pilot and will have the freedom to reject the proposals if there are any concerns that they are unfair to individual practitioners. This amendment means that noble Lords do not simply have to take my word for it that a pilot would be fair; they will be able to judge for themselves on the basis of firm proposals that OHPA itself will develop in conjunction with lawyers. I hope this will help to allay any remaining concerns on the issue. I beg to move.

Earl Howe: My Lords, I feel I need to say no more than how grateful I am to the Minister for having taken these concerns away and responded in such an excellent way. I warmly welcome these amendments and believe that they improve the Bill materially.

Baroness Finlay of Llandaff: My Lords, I do not want to detain the House but simply reiterate the thanks expressed. The Minister has gone an extremely long way and allayed many of the fears among the healthcare professionals. I wholeheartedly commend the amendments.

Baroness Barker: My Lords, my noble friend Lady Tonge took a specific interest in this issue and we very much welcome Amendments Nos. 75 and 76. I do not expect the Minister to answer now, but on Amendment No. 59, will she write to me to explain the parallel situation facing social care workers? Under, for example, the protection of vulnerable adults legislation and the Protection of Children Act, the bar beyond which allegations can be made against social care workers is set considerably lower than it is for healthcare workers. I am concerned that there will be a disparity as regulation of the two professions moves together. Can the department furnish noble Lords with a digest that sets out in parallel the situation if one person is a medic and the other a social care worker? It would be extremely helpful.

Baroness Thornton:My Lords, I am grateful for the welcome given to these amendments. The noble Baroness Lady Barker, asked a very pertinent question. I undertake to find out the answer and circulate it to all those who have been involved and would be interested in it.

On Question, amendment agreed to.



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Clause 120 [Standard of proof in proceedings relating to registration of social care worker]:

[Amendments Nos. 59A and 59B not moved.]

Clause 124 [Public health protection]:

Lord Darzi of Denham moved Amendment No. 60:

The noble Lord said: My Lords, it will be convenient also to consider government Amendments Nos. 62 to 68. As the noble Baroness, Lady Stern, has tabled amendments to government Amendment No. 62, I will wait for her to set out her position on those amendments before responding to them.

I turn first to Amendments Nos. 62, 64, 65 and 68. I recognise that there were concerns about whether the safeguards in the Bill were strong enough in relation to the powers to detain, isolate or quarantine individuals where they refuse to take action to protect others voluntarily. While I did feel that the Bill as drafted contained sufficient safeguards, I have looked carefully at how I might be able to provide additional reassurances to noble Lords. I have tabled three government amendments to introduce further safeguards around time limits for orders and extensions of orders. These amendments, first, restrict the periods of any detention, isolation or quarantine measure under the domestic regulation-making power to maximum periods of 28 days before a review must take place. This then mirrors the arrangements already in the Bill for the justice of the peace powers. Secondly, they restrict the period of any extension of a justice of the peace order to no more than 28 days at a time. Thirdly, they make the first version of regulations dealing with time periods for orders and extensions of orders other than for detention, isolation and quarantine subject to the affirmative resolution procedure, so that Parliament can debate those provisions.

I should now like to take the opportunity to make a further two commitments on the record for safeguards which will be included in the regulations. These additional safeguards are designed to ensure that there is transparency about how these orders are used, and that even the most vulnerable person who has an order made against him will be able to get any help and support he needs.

Noble Lords have convincingly argued that it would be beneficial to have a central record kept of all orders made by justices of the peace. As I said in Grand Committee, the Department of Health has already agreed with the Health Protection Agency that it will set up a monitoring system for England within its standard operating procedures. I can now make a commitment that the regulations will require the local authority to report the making of an order to the HPA, in line with its existing duty to co-operate with the HPA, as set out in Section 5 of the Health Protection Agency Act 2004. I should also point out that guidance will be produced to accompany the legislation and assist relevant stakeholders in understanding their powers, duties and responsibilities.

Noble Lords were also concerned about the needs of vulnerable individuals who may be placed under an order. To enhance the existing safeguards, I am also

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committing to place in regulations a duty on local authorities to ensure that a person who has an order made against him is made aware of his rights, relevant support services and how to access them.

I turn now to government Amendments Nos. 60, 63, 66 and 67. Noble Lords raised some very important points in Grand Committee about the provisions allowing a justice of the peace to order the disposal of dead bodies where this is necessary to protect public health. Having carefully considered the views expressed in Grand Committee, I do not think that the Bill as drafted was as clear as it could be about what is intended by these provisions. Let me clarify this now. A dead body is either cremated or buried. In some cases it may be necessary to specify one method over the other, or to specify the manner in which burial or cremation should take place. For example, if a body was heavily contaminated with radioactive material and could not be safely cremated, it might need to be buried in an appropriately designed coffin so that the radioactive material was sufficiently contained. I have therefore tabled government Amendments Nos. 60 and 63 to make clear in primary legislation our intention that destruction or disposal of a dead body should only be by cremation or burial.

Disposal of dead bodies is a sensitive issue. I agreed fully with the concerns raised by the noble Earl, Lord Howe, about the distress that this may cause relatives and the need to make sure that they are both informed and have a right to challenge such an order. I have therefore tabled government Amendments Nos. 66 and 67 to require the Secretary of State or Welsh Ministers to make regulations setting out who is to be notified when a local authority applies for a justice of the peace order. It is my intention that these regulations will require local authorities to endeavour to notify the next of kin where an order involves a dead body. I also intend explicitly to add in regulations “next of kin” to the list of affected people who can make an application. This will ensure that the ambiguity surrounding the issue of ownership of a dead body does not prevent relatives applying to vary or revoke an order in relation to the deceased.

I hope that noble Lords will feel that I have brought forward a substantial package of measures to address the concerns raised in Grand Committee and that I have provided adequate reassurance on a number of important points. I beg to move.

6.30 pm

Lord Dubs: My Lords, the noble Baroness, Lady Stern, is not able to be here this evening so she has asked me to move the amendments standing in her name. My noble friend Lord Darzi almost took all of the wind out of my sails, but perhaps not quite, so I shall continue. First, I would like to wish the NHS a very happy 60th birthday which is at the end of next week. That was quite out of order but it is the only chance I shall have to say it.

I shall speak to Amendments Nos. 62A to 62D, which stem from discussions and consideration that took place in the Joint Committee on Human Rights, although I must stress that I am not speaking on

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behalf of that committee. I welcome what my noble friend has said, but perhaps we can just go a little bit further.

The Government’s amendment would limit the provision for automatic review to only those regulations which impose a special restriction or requirement on a person for longer than a specified period. This is narrower than the current language in the Bill which provides for all special restrictions or requirements, including in relation to things or premises or in relation to persons, regardless of the period of time for which they remain in force. If I am not right in my assessment, my noble friend will surely tell me.

The first two amendments would extend the Government’s amendment to require or review in respect of all special restrictions and requirements imposed on persons, things or premises. The third amendment would reiterate the concern that regulations which enable administrative orders imposing restrictions or requirements on individuals should lapse when they are no longer necessary and should be subject to regular parliamentary scrutiny. They provide that measures enabling compulsory detention, isolation or quarantine should lapse when they are no longer necessary to meet a serious and imminent threat to public health, or after 12 months. This would require the Government to seek parliamentary approval for these types of regulations on an annual basis. That goes somewhat further than the safeguards suggested by my noble friend.

The Government also propose that where a special restriction or requirement includes detention, isolation or quarantine, the maximum period for which that restriction may be in place without review will be 28 days. Thereafter, there must be a review without application at 28-day intervals. That is welcome in that it makes clear that the review must be unprompted and that it must take place at regular intervals. However, its value is somewhat diminished because the identity of the reviewer is unknown. My noble friend talked about transparency, which is very welcome. I hope that that transparency can be taken a little further so that we would know the identity of the reviewer.

Cases involving detention, isolation and quarantine may involve the deprivation of liberty or interference with private and family life. It is therefore important that a decision of that sort should be reviewed on a regular basis, and by an independent, impartial tribunal. The provision for independent, automatic review of administrative decisions imposing compulsory detention, isolation or quarantine, would be an important safeguard for the right to liberty and the respect for private and family life.

The final amendment would require any detention, isolation or quarantine to be reviewed automatically by a magistrate’s court or another named, independent and impartial tribunal after 28 days. Can my noble friend explain why at least in cases of compulsory detention, isolation or quarantine, there should not be an automatic review after 28 days by a court, or other, tribunal as will be required by the Bill where these restrictions are ordered by a justice of the peace?



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Earl Howe: My Lords, very briefly, I thank the Minister for having taken away many of the concerns raised in Grand Committee on this part of the Bill and for having responded to them so constructively and satisfactorily, both in the government amendments that we are now considering and in the undertakings that he has given. I warmly welcome the government amendments in this group.

Baroness Barker: My Lords, I thank the Minister in particular for taking away the point made by ourselves and the noble Baroness, Lady Gould of Potternewton, that there should be a central record of measures under the Bill. That will be an important public health measure. I also thank the noble Baroness, Lady Thornton, for having tabled these amendments and getting us this far. The work on this is to be commended.

I should like to add my support for the points made by the noble Lord, Lord Dubs. During our debates, we focused, quite rightly, on the potential deprivation of liberty of individuals. But thinking back to the foot and mouth disaster of a few years ago, perhaps we underestimated, in our debates, the extent to which people’s businesses and livelihoods can be put in danger. A restriction of 28 days on a farm can be enough to put the farm out of business. I am sure that the noble Lord, Lord Darzi, will respond to all the points raised by the noble Lord, Lord Dubs, but the inclusion of “thing or premises” is important because there is a potential in this for people’s homes and livelihoods to be severely damaged. I wish the noble Lord, Lord Dubs, well and I hope that he gets a speedy response. I also thank the Minister.

Lord Darzi of Denham: My Lords, I am grateful to my noble friend Lord Dubs for supporting this amendment. The noble Baroness, Lady Stern, who is not in her place today, had tabled Amendments Nos. 62A to 62D, which seek to make further changes to government Amendment No. 62.

Amendment No. 62A is intended to ensure that the right to review is extended to regulations setting measures against “things or premises”. I can assure my noble friend that the provision does, in fact, already cover these measures. However, I understand that the technicalities of the drafting may not make this clear. I thank the noble Baroness and my noble friend for bringing this to our attention, and I am delighted to be able to say that I can accept the amendment.

Amendment No. 62B seeks to extend the right of review to measures that are one-off measures and not measures that have a specified period. I sympathise with the sentiment. However, I believe that it is unnecessary to remove the wording in question. One-off measures—such as medical examination, or the requirement to disinfect a premises—already have a safeguard at new Section 45F(6). This provision allows an individual the right of appeal. If the individual disagrees with a one-off measure, the appropriate action is to appeal against it, not to seek a review.

Amendment No. 62C seeks to install a sunset clause so that regulations containing measures to detain, quarantine or isolate individuals must be remade every 12 months and must lapse when there is no longer a

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serious and imminent threat. I hope that I have reassured my noble friend that this amendment is not needed because these measures can be imposed only if there is a serious and imminent threat. Therefore, it is unnecessary to state in a provision that the regulation must fall when no threat is present, because these powers could not be used if there was no longer a threat.

We have also spoken a lot about SARS during our debates on this part of the Bill, and it is worth remembering that the SARS outbreak lasted for more than two years. If a similar outbreak occurred, it would be appropriate for provisions to be in place for longer than a year at a time.

Amendment No. 62D seeks to require that all reviews are carried out by a magistrate or,

As I explained in Grand Committee, the reason for not leaving the review power with a magistrate is that the purpose of new Sections 45C and 45D is to provide central powers to deal with serious and imminent threats when it may be appropriate to enable a decision-maker other than a justice of the peace to take key decisions at the relevant time. The amendment could have the effect that, in a widespread emergency, justices of the peace could be overrun with applications that could better be determined by an authorised officer applying centrally set criteria under carefully drafted regulations.

My noble friend proposes that this problem could be avoided by allowing for independent and impartial named tribunals to hear reviews. Our provision allows the review to be heard by a person determined in accordance with the regulations. That means that the regulations must set out who should be allowed to carry out reviews, and Parliament will be able to debate the appropriateness of these reviewers when the regulations are debated as part of the affirmative procedure. I am not clear what is meant by the term “named tribunal”, but the provision we have offers a sound safeguard for individuals subject to measures under these regulations. Let us not forget that the review is a safeguard in addition to the right to appeal to a magistrate under new Section 45F.


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