John Baron (Shadow Minister, Health; Billericay, Conservative)

I shall conclude with just a few remarks. Opposition Members welcome the Bill and support the Government in their attempts to address the problems of clinical negligence litigation. I hope that we have made that clear. However, the NHS redress scheme must not be a missed opportunity to create a mechanism that has the full confidence of patients and provides a meaningful alternative to going to the court. Again, that is something that we share on both sides of this room.

As far as I can see, only one key issue divides us. We on the Opposition Benches—I believe I speak for the Conservatives and the Liberal Democrats—believe that a fact finding stage of the investigation ought to be independent. The Government do not, as the Minister has made reasonably clear in the exchanges this morning. As far as we are concerned, this is a matter of natural justice based on the principle that no man should be judged in his own cause. It is also a pragmatic necessity, in the sense that an investigation without the badge of independence would lack credibility and fail to inspire the confidence of patients.

I have heard what members of this Committee have said, and I listened very carefully to the comments made by the hon. Member for Birmingham, Erdington. He declared an interest with Action for Victims of Medical Accidents and has raised concerns about the lack of independence in the Government’s proposals. That is the position taken by Action for Victims of Medical Accidents as well. If he believes that the fact-finding stage of the investigation under the redress scheme should be overseen by a person independent of the health care trust, where does he stand on this whole issue? The central issue of how one imports independence into the scheme if someone independent is not overseeing the health care trust has not been addressed. If Members do not agree with the simple proposition that it would be a good idea to have someone independent overseeing that fact-finding stage, I would welcome any suggestion, particularly from the hon. Member for Birmingham, Erdington, as to how he and his associates believe that independence ought to be introduced.

Siôn Simon (Birmingham, Erdington, Labour)

Quite simply, the independence as envisioned by me and by AvMA does not come from the kind of arrangements that the hon. Gentleman describes and which were envisaged in clause 12. The independence comes through some version of the joint instruction by the trust and the claimant of independent medical experts. That is the independence that we are talking about and that, briefly, is the answer to his question.

John Baron (Shadow Minister, Health; Billericay, Conservative)

I thank the hon. Gentleman for answering that point, but introducing lawyers—at the end of the day, they have to represent one side or the other—regardless of how independent they may be and whatever independent expertise they may have, does not make the process independent. If we are to ensure that this process has credibility in the eyes of patients, that issue of independence is terribly important.

Both the Minister and the Secretary of State have conceded that there is a practical and logical distinction between fact-finding and fault-finding for the purposes of the scheme. First, the facts must be investigated at trust level. Secondly, the case must be passed to the NHSLA for consideration of liability and compensation. Therefore, there is bound to be a two-stage process—the Minister has acknowledged that that exists; whether it be the redress scheme, as envisaged by the Bill as amended or the redress scheme as we proposed initially—as we have consistently argued. The only issue is whether the investigation of facts ought to be independent.

The Minister has deployed a number of arguments against our simple proposal. He has stated that independence is imported simply by involving free legal advice in relation to an offer or settlement, but as I suggested to the hon. Member for Birmingham, Erdington, that is not the same thing as an independent scheme. Participation of independent lawyers in a process does not transform a non-independent process into an independent one—no matter how much one argues that.

The Minister has also suggested that free, independent medical advice imports some element of independence. That is an empty assurance, because expert advice should in any case be independent or it is not worth the paper that it is written on. If it is not independent, it is not expert opinion but advocacy, and that cannot be right.

The Minister has suggested that independence is imported through access to the courts. The Government are defining the merit of the redress scheme by the occasion of its failure—when people resort to court action—even though the scheme is supposed to provide a genuine alternative to litigation. As for complaints to the health service ombudsman and review by the Healthcare Commission, the availability of such remedies to maladministration and procedural matters is not a substitute for re-examining substantive matters.

The Minister has suggested that an independent fact-finding process would be adversarial, accusatory or finger-pointing. He has consistently made the point that an independent fact-finding stage somehow imports an adversarial review of the facts, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. We have referred to the Inquiries Act 2005 and to the coroners system, not because we view the redress scheme working in exactly the same way, but rather because they provide a conceptual model for what we propose. Fundamentally, they are independent inquisitorial processes which are concerned with the establishment of fact rather than fault. There is no sense at all in which such investigation would reinforce a blame culture in the NHS.

Fundamentally, they are independent inquisitorial processes which are concerned with the establishment of fact rather than fault. There is no sense at all in which such investigation would reinforce a blame culture in the NHS.

Anne Begg (Aberdeen South, Labour)

Order. We are now beyond the time when the Committee was due to rise, and it is time for questions in the House, so I would be very grateful if the hon. Gentleman brought his remarks to a close. We are debating the final question to dispose of the Bill. The main debate has obviously taken place, and there are still the Report and Third Reading stages.

John Baron (Shadow Minister, Health; Billericay, Conservative)

Thank you, Miss Begg, for that guidance.

The Minister talked about promoting the culture of openness and honesty and the NHS taking responsibility for its own mistakes. He implied time and again that because our proposal would require an independent outsider to come in and consider what went wrong, it would argue against a culture of openness in the NHS and would encourage the NHS to close ranks. That is absurd. If he is talking about openness only as long as it is in-house and not exposed to outside scrutiny, it will not be openness at all. There is a fundamental contradiction between the Minister’s desire to promote openness and his reluctance to allow independent advisors to investigate the facts.

These discussions will no doubt continue at Report stage and on Third Reading, and I very much look forward to that. However it would be remiss of me if I did not thank you for chairing the Committee, Miss Begg, the Hansard writers, and all who assisted with proceedings, including Dr. John Benger for his advice on amendments. I thank the Minister for his efforts. The fact that he has been unable, in my view, to answer our concerns about independence and the lack of openness built into the Bill at present, should not detract from the fact that he has been genuine in his attempts to improve matters.

Lastly, I thank my colleagues, my hon. Friends the Members for Ruislip-Northwood, for Beverley and Holderness and for Broxbourne (Mr. Walker) for their valuable contributions—a fine body of men—and last but certainly not least, my Whip, my hon. Friend the Member for Eddisbury for stepping in at the last minute and doing such a fine job.

We said at the beginning that we would be keeping an eye on the World cup when it came to the programming, and that, whether by luck or design, we would achieve our goal. When I said “by design”, that would be on our part; the luck would have been on the Government’s. I encourage everybody to enjoy the football.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

I am going to put away my 20-page speech, breaking the habit of a lifetime and going for cheap popularity by deferring my remarks until Report. I thank hon. Members for creating a reasoned and relaxed environment, to which I think the Minister has  made a substantial contribution, and I thank you,Miss Begg, for having chaired proceedings in a similar relaxed and rational way.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I am grateful for those general statements of support for the Bill. There is obviously a difference of opinion as to the means by which we get to the goal that I think we share. The argument is on the means and the hon. Member for Billericay is absolutely right to say the scheme must have the confidence of patients. Let me just say quickly two things to him.

There will be a three-year review, and that is the point at which we will test some of these matters. The process has to be conducted fairly and properly or it will not have the confidence of patients. There will be an in-built presumption that the process will be done in the right way, or else the scheme will not work and patients will not have confidence in it. They will walk away and go to the courts. In-built in the scheme is the presumption that people will conduct the inquiry fairly and properly and try to work towards resolution, which in the end is what we all want. There is an element of a two-stage process, but we do not have the two schemes we would have had under the measures put forward by the hon. Member for Billericay. Let us return to those matters on Report, because there is clearly still some mileage in them.

Let me, too, now thank you, Miss Begg, for chairing our proceedings so well. The hon. Member for Congleton (Ann Winterton) has good reason to be grateful to you, because you have spared her the joys of this Committee.

I thank the Clerk, Dr. John Benger, who is used to my rambling in the Health Committee, and who has had more of it here. I also thank the Hansard writers, the attendants and, of course, the police, for dealing with annoying electrical noises this morning.

I thank my colleagues on the Committee, who have contributed well, and I think that there is no difference between us. My hon. Friend the Member for Birmingham, Erdington has been pressing me for a little more on Report, and we will think about that; we will carry on discussions with him and see where they lead us. My hon. Friend has contributed extremely well to our proceedings, representing the organisation with which he is involved properly and in a fine way, and I pay tribute to him.

May I, too, thank the Whip, my hon. Friend the Member for Ogmore (Huw Irranca-Davies)? We have two Welsh firsts in the Committee: we have the framework power, and this is my hon. Friend’s first Committee. So we have two firsts for the Welsh, although they are not enjoying such prominence in Germany, but never mind—perhaps another time.

Lastly, I thank the hon. Member for Billericay for the way in which he and his hon. Friends have conducted the proceedings. This has been an amiable Committee, and I look forward to continuing our discussions on Report.