Moved by Lord Alderdice
47: Before Clause 18, insert the following new Clause—
"National Medical Adviser to the Chief Coroner
(1) The Secretary of State may appoint a person as the National Medical Adviser to the Chief Coroner.
(2) The Secretary of State must consult the Lord Chancellor and the Lord Chief Justice before making an appointment under this section."
We have here a series of amendments tabled to address the proposals by Her Majesty's Government for a medical adviser service, effectively—that there would be medical advisers to the various coroners. That is a welcome development building on our earlier debate on the various changes, the possibility of partial post-mortems, particular investigations and so on. The idea that we would have medical examiners seems a positive development that we welcome. It is something that in many ways has been lacking for some time. That the Government have taken a step along this road is a step very much in the right direction. However, there are a number of questions about the system being put in place. The Government have rightly found it necessary to identify the position of Chief Coroner to bring the whole service together. It would be important in the development of any service but, particularly in one that is somewhat devolved down to local authorities to address, the position of Chief Coroner seems important. There are also particular responsibilities placed on the Chief Coroner to draw together patterns of illness, disorder, disease, death and anything that will be helpful at a national level.
It does not seem unreasonable that there be a national or cheap medical adviser who would assist the Chief Coroner and perform similar functions with regard to the medical examiners or advisers throughout the country. However, the Bill does not say that there shall be a national medical adviser or chief medical examiner, so I and my noble friend Lord Thomas of Gresford have tabled the amendment—not as a new idea, because it was debated substantially in the other place. Indeed, I note that the Minister in another place, responding to the proposal that there should be such a national medical adviser but that it was not in the Bill, indicated that she would be prepared to consider it and return to it, and that she had not set her face against including a national medical adviser in the Bill. Fortified by that, we return to the question to see whether the Government have thought further about this and can advise us of any good reasons for not including it in the Bill.
I note some of the arguments that were adduced by the Minister in the other place; namely, that lots of people were involved, including various staff and people from different backgrounds. That is a fairly thin argument because no one else has a national service such as the medical examiner service or the medical adviser service. As regards there being lots of other people involved such as porters, and the fact that they cannot all be represented at the national level, that is absolutely true but it is hardly the point in this connection.
One of the responsibilities, among many others, that we think would be appropriate to establish is to ensure certain standards and training among medical examiners throughout the country. I recall that when I raised this at Second Reading the Minister helpfully commented that there had been discussions about standards, training and courses with the relevant royal colleges. I had mentioned the Royal College of Pathologists in that regard but the Minister advised us that the Academy of Medical Royal Colleges had been involved in this and that things were well advanced in terms of producing training and courses. We would like to push this a little further to see whether the Minister can help us further. We have tabled amendments concerning regulations about the training of medical examiners and the standards that should be set for them. We are a little concerned about the consequences of not doing this although I have no doubt that the Minister will say it will be in the regulations. However, when one is trying to set up a large service such as this all round the country, certain areas will attract very high-quality people because there are people in place who could move fairly seamlessly into the new positions, which will offer more authority and more opportunity to use their skills. However, in other places such people will not exist or will not be available, or the people who have been doing the job will be past their sell-by date and will take this opportunity to step down. There may not be somebody there to take over.
Therefore, we harbour concerns that people who might not be as well qualified as one would hope and who are without the necessary experience might take up these positions unless clear standards are set and clearly stated qualifications are required. Therefore, we have tabled an amendment which proposes that those appointed will have to have undertaken a course and have qualified from it. Attending a course is one thing but showing that you have learnt something from it is another matter. Some of these matters may be able to be dealt with in other ways than being included in the Bill, but we want to press that matter a little further.
The standards, training and qualifications of the national medical adviser must be a substantial concern. If we are concerned about that at the local level we are even more concerned about it at the top level. Therefore, Amendment 49 proposes:
"The Chief Coroner shall appoint an experienced forensic pathologist to be the National Medical Adviser".
This goes to the heart of the matter. We need someone who has the necessary experience to give advice at a national level to the Chief Coroner on issues concerning untoward death, to see whether patterns are emerging, standards are being adhered to, people are being appropriately trained, or whether serious difficulties are emerging while the new service is being put into place which need to be raised at a national level. One way to monitor that could be to table an amendment stating that the Chief Coroner should produce a report to your Lordships' House and the other place after a few years to see how the service is operating. However, in educational terms we are much happier with continuous assessment than with periodic examinations. Therefore the idea of having a national medical adviser is that their constant and consistent responsibility would be to observe how this new service is developing and to bring advice to the Chief Coroner, Ministers or Parliament to say, "This was a good idea but here are some flaws, hitches or problems".
We welcome the Government's move towards having medical advisers or examiners all around the country. However, we want them to be properly trained and qualified; they should be monitored and provide the required information; and there should be someone at the heart of things—a national medical adviser—to give advice to the Chief Coroner and to provide appropriate monitoring and supervision of medical advisers around the country. I beg to move.
I have amendments in this group and I welcome all the comments of the noble Lord, Lord Alderdice; I do not dispute any of them. I completely concur with the need to stress training and agree that the exam should be the equivalent to licensing and incorporate revalidation.
There is a general welcome from medical examiners but there is a concern which we need to express. If they are part-time you may find that one is working in the morning and another in the afternoon; when there is a complex case perhaps only the coroners themselves—who are, as now, on call 24/7—would effectively provide the continuity required. Partly to get around that and partly because if you have a national service you need to set national standards, my amendments use the term "Chief Medical Adviser". It is only the name that alters; however, one difference is that I have said that the chief medical adviser should be there to,
"monitor the performance of the medical examiners", because if there is to be consistency across the UK it will be important that their performance is managed from many aspects. I did not add that this person should be there also to advise the Chief Coroner, because that is tied up in the title. If you are an adviser, your role is to advise. It would be duplicative to call a person an adviser and then state that they provide advice.
I have also suggested that whoever is the chief medical adviser needs to have more experience than that required of the medical examiners, which is why I have stipulated that the chief medical adviser should have been qualified for 10 years and have had seven years in practice.
I know from my very helpful discussions with the Minister before Committee that the Government are thinking of appointing two senior people—one as a medical adviser to the Chief Coroner and another to oversee the medical examiners. If I am right, I understood that the medical examiners would be overseen by someone in the Department of Health, but that the person working directly with the Chief Coroner could be employed within the Ministry of Justice. I have a slight concern about having two people at the top of the system rather than having a more vertical structure. My preference would be to have one chief medical adviser with a deputy chief medical adviser who may be the person responsible for overseeing the standards of the medical examiners around the country; so there would be some career progression. The reason for my concern is that I am slightly worried that they could inadvertently give different messages. It would be no good for anyone if they did not get on and, therefore, gave different messages. A lot of the message-giving will relate to the way in which research is interpreted and the way in which new advances in examination techniques come along and the emphasis that is put on them.
We all know that someone who develops a new examination method in pathology can be very keen and slightly overegg the claim about how useful it will be. They do this in pursuit of the method's development—not dishonestly but just because they are very keen. Therefore, it might be helpful to have someone right at the top who is able to temper whatever information comes in, and I concur with the suggestion from the noble Lord, Lord Alderdice, that that person should have training and experience in forensic pathology.
Another reason for referring to this person in the Bill rather than simply in regulations is that he will need to have powers in order to deal with difficult situations. The medical examiners will be employees within the primary care trust. They will be dependent on having clear blue water between those employing them and the job that they have to do. That may include investigating and exposing poor clinical practice in their employers and therefore they will need some protection. If the chief medical adviser is referred to in the Bill and has statutory powers, that will build in a degree of protection which I fear may not be there if the appointment is made without being referred to in the Bill. That is why I have been pushing for this. It becomes particularly important in relation to possible prosecutions for corporate manslaughter and so on, which may be difficult to prove. Such cases may become very difficult and contentious, and those who give advice may require a lot of support in providing evidence to the inquest and to any subsequent proceedings. They may need to be represented by a very senior person—the chief medical adviser. My concern is that, if we leave this matter to regulations and do not put something into the Bill, we may not provide sufficient support to medical examiners on the ground to enable them to be operationally independent of those who pay their salaries.
My noble friend Lady Finlay and the noble Lord, Lord Alderdice, have argued persuasively in favour of their Amendments 47 and 48 concerning the role of the chief medical adviser, and I am very happy to support the arguments that they have just adduced. We will come to Amendments 52 and 53 tabled by the noble Lord, Lord Kingsland, to which I have added my name, and, again, I strongly support the sentiments expressed in them.
My own amendment in this group, Amendment 51, relates to the role of the Chief Coroner. It would leave out line 2 on page 11 of the Bill to the word "must" and insert "The Chief Coroner", so that instead of:
"must appoint persons as medical examiners to discharge the functions conferred on medical examiners by or under this Chapter".
I think that it is a very straightforward amendment, which I hope will be immediately understood by the Committee.
During an earlier part of our proceedings, the Minister, the noble Lord, Lord Bach, said that he had written to me about the recommendations of Dame Janet Smith, who chaired the Shipman inquiry. I am grateful for his letter, dated
"whilst accepting the findings of the Inquiry, the Government has decided to adopt a different approach to reforming the coroner service than that recommended by Dame Janet Smith. For this reason, [it] is not possible to provide a figure regarding the exact number of recommendations responded to by legislation incorporated in the Bill".
Following that letter, yesterday the Minister answered a Question for Written Answer—HL4220—which I tabled last week on the same point concerning how many of the recommendations of the Shipman inquiry had been incorporated into the Bill. The Minister said:
"Other recommendations about coroners and death certification have been addressed by alternative means, including the framework within which services are delivered ... the Government are not convinced that the inquiry's recommendation for a centralised death investigation service is the most effective model. Our preference is for coroners and medical examiners to be based at a local level, and while there will be close links between the two on specific aspects of their work, we believe that they should not be part of an integrated organisational structure".—[Official Report, 22/6/09: cols. WA 247-48.]
I am grateful to the Minister for being so straightforward in his reply but this highlights a fundamental disagreement between the approach the Government are adopting and that which Dame Janet Smith suggested in the Shipman inquiry. There is a fine line to be drawn between accepting the findings of an inquiry and not implementing all its recommendations. Although I accept that, or course, no Government are bound by an inquiry in advance to accept everything that it says, I think the Minister and I would agree that this extraordinary series of reports, the amazing, voluminous evidence that has been published, and these very thorough recommendations, are not something that any of us would dismiss lightly.
I think that what has been accepted and what has been rejected should be a matter of public record as we scrutinise a Bill that, as the Minister says,
"is the last piece of primary legislation required to implement the Government's wide-ranging programme of action in response to the recommendations of the Shipman inquiry".
It would be remiss of us not to detail where the differences lie.
When the Government say that they have been taking a different approach from Dame Janet and members of the Shipman inquiry, we do need to be clear what we are accepting and what we are rejecting. From the Minister's Written Answer, these can now be seen to be categorised into two parts. He said that in accepting parts of the inquiry a statutory duty was being laid,
"on doctors to report certain deaths to coroners, the appointment of a Chief Coroner, an appeals system, independent inspection, and independent medical examiners to scrutinise the certificates of cause of death of all deaths not reported to the coroner".
He went on to say in talking about the things that were being rejected:
"Recommendations made by the Shipman inquiry into matters that are beyond the scope of coroners and death certification—such as the control of drugs, complaints arrangements in health and social care, and medical regulation and revalidation—are being taken forward by the Department of Health".— [Official Report, 22/6/09: cols. WA 247-48.]
I should be particularly interested to hear from the Minister how precisely that is going to happen, whether it is going to be dealt with through legislation or through regulations, and how the House will be told about the progress of those issues that fall outside the scope of the Bill.
Amendment 51 highlights one of the main differences between the two approaches—the Shipman inquiry approach and that of the Government in the Bill. It is Dame Janet's strongly held view that the English primary care trusts and the Welsh local health boards should not be the bodies to, as provided in Clause 19 of the Bill,
"appoint persons as medical examiners to discharge the functions conferred on medical examiners by or under this Chapter".
She believes, and I share her view, that the Chief Coroner would be best placed to do this. That is why I tabled Amendment 51. It straightforwardly transfers the tasks to the Chief Coroner from the PCTs and the local health boards.
I was particularly struck by Dame Janet's contention, based on her experience of the Shipman evidence, that local relationships can become "too cosy". She says that there is a fundamental issue at stake here: the protection of independence. We must always guard against conflicts of interest and potentially incestuous relationships—the "Harold is one of us" arguments: "He plays at the same golf club. He is a member of the same circles, attends the same professional meetings, drinks in the same pub. He is a decent sort of fellow and we must all look after one another". That is a recipe for disaster.
I should like to dwell for a moment on the Third Report on the Shipman inquiry, which ran to more than 600 pages. Dame Janet spelt it out very clearly on page 3, paragraph 12. She said:
"The procedure for certifying the medical cause of death has remained virtually unchanged for over 75 years ... it has a number of disadvantages. The most serious of these is that it is dependent on the integrity and judgement of a single medical practitioner ... The fact that the system of certification of the cause of death depends on a single doctor does not give rise only to the risk of concealment of crime or other wrongdoing by that doctor. There may be occasions when a doctor knows that a death may have been caused or contributed to by some misconduct, lack of care or medical error on the part of a professional colleague. In those circumstances, it takes considerable courage and independence for a doctor (particularly a junior doctor) to refuse to certify a death, when s/he knows that, if s/he does refuse, the death will be subject to a coroner's investigation".
The point that is being made in the inquiry's report is that when relationships become too cosy, or when someone is at quite a junior level and part of a local circle, there may not be the kind of independence that is required to determine the sorts of events that were investigated by the Shipman team.
I was also very struck by the fact that the BMA, which is the only professional body fully to represent future medical examiners, has also raised concerns about Clause 19 in its briefing note. It says:
"The BMA has concerns about the independence of the medical examiner, given that the roles will be recruited for and managed by the Primary Care Trust or Local Health Board within which the post would be based ... we are still concerned that medical examiners could be subject to pressure or a conflict of interest under this arrangement".
It also highlights the failure to discuss this issue on Report in another place. In a sitting of the Public Bill Committee on
The BMA has pleaded for further discussions with the Government on issues such as terms and conditions, remuneration, recruitment, retention, training and accountability, and I hope that between now and Report the concerns which my noble friend and the noble Lord, Lord Alderdice, have identified today may also be properly addressed.
Dame Janet had the invidious job of sifting through evidence and listening to the witnesses detailed in hundreds of pages of evidence, but the fact that we were willing to set aside £20 million of public money to enable this comprehensive review to be undertaken demonstrates Her Majesty's Government's proper concern about this matter. It is therefore all the more frustrating and disappointing that we have not acted on some of the committee's recommendations in crucial respects. The need to place a cordon sanitaire around the appointments system and to place it in the hands of the Chief Coroner is a glaring example, and I hope that the Government will be willing to give this further thought.
This is an extremely important matter, and it is crucial that we get it right. As my noble friends Lady Finlay and Lord Alton have made clear, many of the clauses in the Bill derive if not directly then indirectly from the report on the Shipman case, which was the result of an inquiry that was chaired by Dame Janet Smith. It is crucial that Clause 19 creates the new role of medical examiner, who will ensure the independent scrutiny and confirmation of medical certificates of the cause of death and will provide general medical advice to the coroner. However, my noble friends and the noble Lord, Lord Alderdice, have made the case for having a chief medical adviser to the Chief Coroner for exactly that purpose: to give general medical advice to the Chief Coroner, just as the medical examiners will give advice to the coroners at a local level.
The Medical Protection Society has considerable anxieties about the details of these appointments. It says that,
"current discrepancies in resources between different PCTs and LHBs, may lead to inconsistencies in resourcing medical examiners. Subsection (1) gives Primary Care Trusts ... in England and Local Health Boards ... in Wales the power to appoint medical examiners".
It is questionable whether this is the best arrangement, particularly for ensuring,
"the true independence of the system".
"accountability between examiners and the new national medical advisor", whom it hopes to see appointed to the new Chief Coroner. The need for more direct access to medical expertise, via coroners, is accepted and, because of this, the Justice Committee suggested that it would be more appropriate for the medical examiners to be employed by the Ministry of Justice, or by the coroners' service, than by the NHS. Will the Minister comment on that recommendation?
The role of these medical examiners must be monitored. A potential conflict could arise if PCTs or local health boards were to employ them because those bodies would be responsible not only for paying the medical examiner but also for monitoring performance, a role that I think is much better in the hands of the chief medical adviser to the Chief Coroner. For that reason too, an independent funding arrangement may be more suitable.
Clause 19(3) proposes that:
"A person may be appointed as a medical examiner only if, at the time of the appointment, he or she—(a) is a registered medical practitioner and has been throughout the previous 5 years".
It is important to clarify the position with regard to registration because, from this year, doctors who are practising in any aspect of clinical medicine will require a licence to practise. Doctors who are retired may remain on the register and be registered medical practitioners but do not have a licence to practise. It is crucial that medical examiners must be individuals holding a licence to practise because they will have to undergo revalidation to demonstrate to the GMC on a regular basis that they remain up to date and fit to practise. It is therefore necessary that we should see details of the skill sets that medical examiners will have to demonstrate at an early stage.
A number of clarifications are required from the Minister on these provisions.
My Lords, up to now, those who have spoken have all been experts in the field. It may be a relief to have a non expert such as myself simply commenting on these proposals. I limit myself to Amendments 47 and 48.
With great respect to those who are proposing the amendments, I do not think that in their present form they are of the necessary quality if we are seriously saying that there should be a national medical adviser to the Chief Coroner. The noble Lord, Lord Alderdice, uses the word "may" in his amendment:
"The Secretary of State may appoint a person as the National Medical Adviser".
That conveys a lack of clarity and lack of necessity about the appointment. The noble Baroness, Lady Finlay of Llandaff, on the other hand, boldly, and I think quite rightly, says:
"The Secretary of State shall ... appoint".
With respect to the noble Lord, Lord Alderdice, there is nothing in his amendment about the nature of the responsibilities. The noble Baroness, Lady Finlay, however, says in subsection (1)(b) of her proposed new clause that, after consultation with the Lord Chancellor, regulations should be produced,
"concerning the responsibilities of the Chief Medical Advisor".
I would hope that before the Bill leaves this House an attempt will be made by those who are behind this proposal to draw up the basic responsibilities that one would expect the chief medical adviser to carry out.
The only specific that the noble Baroness mentions is in subsection (2)(c) of her proposed new clause, which states:
"The Chief Medical Advisor must ... monitor the performance".
That would no doubt lead to a report from time to time. However, that is not a chief advisory role. I hope that we will have a further and better definition of that.
The noble Baroness also referred to this officer's powers being important. If you are giving the officer powers, the place to find those should be in the primary legislation. She referred to prosecutions. Will this officer have some role in connection with that? Will the finger point to him at some stage of the prosecution? I am not at all clear about that.
I am anticipating that the amendments will not be pressed to a Division today. I may be wrong; I do not know what the Minister is going to say. I respectfully suggest to the proposers of the amendments that we should have a quite different and clearer text to look at and report on. We will then have a grip of who this new officer that we want to have in place is so that when the Bill goes back to the other place they will know what we are backing. At the moment, that is lacking.
I support these amendments, with the very helpful caveat of the noble Lord, Lord Neill of Bladen. The ideal would be for the Government to be prepared to take over the idea of a national or a chief medical adviser and to use their facilities for drafting to insert the points put forward by the noble Lord and the noble Baroness. Among coroners, there are concerns about medical examiners being appointed by the local primary care trust. First, they may be perceived not to be independent. The second concern is the point made by the noble Lord, Lord Alton, as to the difficulty sometimes in rather small areas with small primary care trusts where everyone is rather hugger-mugger. The perception is as important as the actuality in having medical examiners outside the primary care trust. Maybe they can be employed for other reasons by primary care trusts, but for the purpose of being a medical examiner, that should come under a different system.
Noble Lords have stressed the importance of the medical examiners, who will ensure independent scrutiny and confirmation of medical certificates of the cause of death and provide general medical advice to the coroner. My simple amendment, Amendment 63A, requires medical examiners to liaise with the clinical governance teams in primary care trusts and local health boards to ensure that patterns or clusters of deaths are identified and shared with the relevant teams at local level. I should point out that my amendment does not say "may" or "shall"; it says "must". I recognise that the Department of Health has indicated in other places that medical examiners will in practice forge close links with clinical governance teams. However, it is important for that to be explicitly reflected in the Bill, not least because it would send a strong message to the public that lessons from, for example, the Harold Shipman inquiry, to which the noble Lord, Lord Alton, referred extensively, have been learnt.
It would also show an absolute commitment by everyone involved in this area that problems will be identified and lessons learnt from deaths where that is possible. Further, this amendment will clarify the scope of the responsibility medical examiners will have in relation to clinical governance.
Our amendments, like those of the noble Lord, Lord Alton of Liverpool, seek to place responsibility with the Chief Coroner to make the appointment, although we retain the link via consultation with the primary care trusts. As the noble and learned Baroness, Lady Butler-Sloss, has already indicated, this is so important because there is concern that the impartiality of an examiner appointed by the primary care trust may be seen as compromised in a situation where the death was caused by failings within the trust itself, through medical negligence or for other reasons.
One might have thought that the Government would be sympathetic to this position in the light of the charter for the bereaved. It is a relatively simple change to make, which nevertheless will command more confidence in the system. The creation of the post of Chief Coroner would seem an ideal opportunity to transfer the power of appointment to a demonstrably independent figure.
Having neither legal nor medical practices, I hesitate to stand here at all and contribute to this debate, but some things worry me. I am concerned that this amendment would not prevent the families involved having the distress of police involvement, which is currently cited as an argument in its favour. But that would necessitate further legislation to prevent the police interviewing persons who had assisted in procuring someone else's death. I cannot understand the noble and learned Lord, Lord Falconer, who would have us consider what he describes as a,
"more civilised approach to suicide".
There is no such thing as a civilised approach to suicide, which is an act of deliberate killing, irrespective of the circumstances. I do not think that we should ever pass legislation that gilds the termination of life, nor removes protection from the vulnerable. There are too many shortcomings in this for it to be an improvement on current law.
I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Alderdice, for welcoming the principle of having medical examiners in this field. I think that other noble Lords have agreed with him on that. I say straightaway that the amendments would be acceptable had the Government chosen a model or system of coroner and death certification reform which had led to the introduction of a unified death investigation service. But, in fact, such amendments would not have been required as they would have been important parts of the policy and therefore already reflected in the Bill.
However, those of you who studied the 2006 draft Coroners Bill will know that, although the Government very carefully considered this recommendation made in broad terms by two parallel independent inquiries, our preferred approach is to have two independent services with close and clear links between the two. It is in that context that my reply will continue on the basis of considering each of the amendments.
I understand that the noble Lord, Lord Alderdice, and the noble Baroness, Lady Finlay, want to increase the accountability for medical examiners. The amendments provide for the appointment of a statutory national medical adviser to the Chief Coroner as a way to achieve this. In doing so, the amendments seek to confer on the national medical adviser the power to make regulations on the training of medical examiners and to set down minimum standards as to the service which should be provided by medical examiners. In effect, they provide the national medical adviser with a leadership role in relation to medical examiners.
We do not believe that the medical adviser to the Chief Coroner is the appropriate person to undertake that role. That is because the Chief Coroner will have jurisdiction only for deaths which are violent, unnatural, in custody or other state detention, or from unknown causes. Like senior coroners, the Chief Coroner will have no responsibility over natural deaths unless they have occurred in custody or other state detention. It follows that the remit of the medical adviser to the Chief Coroner should not stray into the generality of deaths except to the extent that I will describe shortly.
The national medical adviser, who we believe should be appointed on a non-statutory basis along with the other staff to support the work of the Chief Coroner—it is not suggested that they should be in the Bill—will advise the Chief Coroner on policy and practice in relation to post-mortems, on issues relating to the prompt release of bodies for funerals and related issues about the retention of organs and tissues, including liaison with faith groups and others with an interest. We also envisage that another role for the national medical adviser will be to develop training for coroners and coroners' officers on medical issues, and to advise the Chief Coroner on medical aspects of appeals by interested persons.
In relation to medical examiners, it is intended that the national medical adviser will be involved in agreeing job descriptions, agreeing protocols setting out the scrutiny that medical examiners must complete, how they interact with coroners and agreeing the curriculum for the training they require. He or she will also be involved in resolving any disputes which arise between coroners and medical examiners about a conflict of views in particular cases. The Department of Health intends to bring forward secondary legislation on these matters, as set out in Clauses 19 and 20, and the role of the national medical adviser in relation to medical examiners will be better, more fully defined there.
Amendment 63A, in the name of the noble Lord, Lord Colwyn, requires that medical examiners must work with clinical governance teams in primary care trusts and local health wards to establish whether patterns of deaths give cause for concern. We agree that this aspect of the work of medical examiners is vital. The Department of Health has made clear in its consultation on improving the process of death certification, and in response to the consultation itself, that this will be one of the main responsibilities of medical examiners. As such, this responsibility will be set out by the Department of Health in secondary legislation brought forward under Clause 19. I hope that goes some way towards satisfying the noble Lord.
Amendments 51 and 53, in the name of the noble Lord, Lord Alton, would give the Chief Coroner responsibility for the appointment, resourcing and monitoring of medical examiners. Given the model that we have adopted—we know it is not the model preferred by a number of noble Lords—and the role that we envisage for the Chief Coroner, we are not persuaded that he or she is the appropriate person to appoint and oversee the work of medical examiners. As I have said, the Chief Coroner will be responsible only for deaths referred to coroners, not for the totality of deaths, whether from natural causes or otherwise. I hope the Committee will accept our reform model and agree that it is much more appropriate for Health Ministers to identify and appoint a leader for the medical examiner system.
Amendment 50, in the name of the noble Lord, Lord Kingsland, has similarities to the ones to which I have just referred. It suggests that the Chief Coroner should appoint the medical examiners but that this should be in consultation with primary care trusts and local health boards. Once again I emphasise that the Chief Coroner will be appointed for his or her qualities and skills for leading the coroner system in England and Wales for deaths which are not considered natural, not for the scrutiny of certificates of causes of death where the death is entirely uncontentious; that will be the role of the medical examiner.
I come back to Amendment 49, in the name of the noble Lord, Lord Alderdice, which would require the Chief Coroner also to appoint the national medical adviser, with the requirement that he or she should be an experienced forensic pathologist. We consider that it would be unduly restrictive to require the national medical adviser to be a forensic pathologist. Of course a forensic pathologist might be suitable for the position, but coroners deal with a broad range of types and causes of death. A registered medical practitioner with experience of treating or diagnosing industrial diseases might also have useful skills to bring to the role of the national medical adviser. We believe that the skills and experience required for the role of national medical adviser to the Chief Coroner is best left to the Chief Coroner to decide and should not be unduly constrained by the Bill.
Amendment 55 seeks to remove the requirement for primary care trusts and local health boards to monitor the performance of medical examiners, to ensure that they meet appropriate standards or required levels of performance. We understand that what the noble Baroness, Lady Finlay, intends is to distance medical examiners from the trusts and boards which appoint them. Of course, as other noble Lords have stressed, it is vital that the public can be confident that medical examiners will carry out independent scrutiny, which includes the requirement in the Bill that trusts and boards have no role in the way that medical examiners exercise their professional judgment. Medical examiners will also need to be sensitive to the needs of the bereaved and provide an effective and responsive service to the communities in which they work. Requiring medical examiners to be accountable to trusts and boards for the standard of service they provide is not incompatible with the need for medical examiners to be independent in the way they use their professional judgment to scrutinise cause of death.
Amendments 48 and 57 to 63, in the name of the noble Baroness, Lady Finlay, seek to create a statutory post of chief medical adviser. As she explained, the intention is to provide leadership for the new cadre of medical examiners. The Department of Health is currently considering the whole issue of clinical leadership for medical examiners with key stakeholders. Clearly there are a number of options for ensuring appropriate accountability and leadership arrangements, including the appointment of a chief medical examiner or adviser. However, in our view, it is not necessary for it to be a statutory role and that this position is consistent with the approach taken by the Department of Health in appointing national clinical directors; for example, the national director for heart disease and stroke and the national cancer director. I hope to provide further details of these arrangements while the Bill is still going through Parliament.
I appreciate the strength of feeling in regard to the inclusion in the Bill of the statutory post of chief medical adviser and I would like to consider in a little more detail, perhaps outside the Chamber, the arguments for and against such a course. I am not rejecting them utterly today but—I make this absolutely clear—neither am I in a position to say that eventually I will accept them.
Amendment 56, in the name of the noble Lord, Lord Alderdice, would require medical examiners to have completed an accredited course of study before they can be appointed. Again, we are not persuaded this needs to be in the Bill, as regulations made under Clause 19(4)(c) will specify the training which medical examiners must have successfully completed prior to their appointment and the ongoing training that they will need to undertake during the term of their appointment. A detailed medical examiner training curriculum has been developed by an intercollegiate group established by the Academy of Medical Royal Colleges. The group is being led on the academy's behalf by Professor Peter Furness, who is president of the Royal College of Pathologists.
As I said, we will expect the Chief Coroner to consult his or her non-statutory national medical adviser as well as the head of the medical examiner service, both throughout the year and when preparing the annual report. This is bound to happen given the national medical adviser's role in supporting the Chief Coroner on the medical aspects of coroners' cases, as well as in the training of coroners and officers on those issues. The consultation will enable the Chief Coroner to provide the Lord Chancellor with a pertinent report covering the key issues in the coroners' system over the previous year. However, we believe that the precise nature of the consultation with the national medical adviser should be left to the discretion of the Chief Coroner.
I have no doubt that we will return to some of these matters in due course, but those are the Government's observations on the amendments tabled for Committee. I should say to the noble Lord, Lord Walton, that when the GMC introduces licences and arrangements for revalidating medical practitioners, I understand there will be a requirement for medical examiners to be licensed as well as registered practitioners—that is, to have a licence to practise. I hope the amendment will be withdrawn.
The licence to practise is being introduced this year. All doctors will now be required, if they wish to indulge in clinical practice, to apply for a licence to practise. Despite my antiquity, I have applied for a licence to practise just in case my services may be required by any noble Lords in an emergency. Having said that, revalidation and the question of examining licensed doctors for their continuing suitability to practise will be gradually introduced over the next two or three years. It is important to recognise that the licence will be introduced this year.
I am grateful to the Minister and indeed to other noble Lords for the responses and the arguments that have been adduced in the debate. I was, and continue to be, somewhat puzzled by the argument from the Government, which was used in the other place as well. They said there are lots of people who are helpful to the coroners and therefore there is no reason to single out medical examiners or to have a chief medical examiner or chief medical adviser. There is a whole section in the Bill on medical examiners, there is not a whole section in the Bill in respect of all sorts of other people that may be helpful to the coroner, and for a very good reason, because we are talking about medical certification of death. It seems to me that if there is going to be a national medical adviser or chief medical adviser—and from what the Minister has said it does appear that there will be one—I am puzzled as to what the argument is for not putting this in the Bill, because it is certainly one way of marking up the responsibility for leadership, accountability and a degree of authority.
Therefore I am very grateful indeed to the Minister for indicating that his mind is not entirely closed to the possibility that it might be in the Bill. I have no doubt that if it is possible for us to have some discussions outside the Committee that we will attend to many of the inadequacies of framing which were rightly raised by the noble Lord, Lord Neill of Bladen, and the noble and learned Baroness, Lady Butler-Sloss. The importance of these amendments is to make the point about what needs to be done and it seems to me that has been made. I welcome the opportunity for further discussions, for without that there can be no question that something will come forward at a later stage and be pressed. This is a centrally important question for a whole series of reasons.
There is a clearly a matter of substantial contention, and I and my colleagues share the view which has been put forward by a number of noble Lords, that a centralised service separate from PCTs provides a degree of independence, independence as perceived by the community—as the noble and learned Baroness, Lady Butler-Sloss, has said—but also independence in fact, because there is in that case much less likelihood of a conflict of interest. That is a serious matter should medical practitioners find themselves in that position, or in terms of how the community perceives it. There is a clearly a diversity of views in regard to this. The Government hold to their particular view and others, including us, hold to a different view as to what the service should be, so I have no doubt we will return to that matter as well.
With regard to the position of chief medical adviser or national medical adviser being filled by a forensic pathologist, I would not hold absolutely to that. However, I did find the Minister's response less than reassuring that actually someone who had an interest in industrial diseases might be able to advise suitably on the whole range of things that a national medical examiner would be able to advise the Chief Coroner on. It does not seem to me that that is a very reassuring response, and whether or not the qualifications should be in the Bill, we will think further about that and return to it.
However on the question of appropriate standards, qualifications and courses, I hear what the Minister says about those being properly cited in the secondary legislation and we will study what the Minister said and return to that. With those remarks and that undertaking of further discussion on these important amendments and clauses, I beg leave to withdraw the amendment.
Amendment 47 withdrawn.
Clause 18 agreed.
Amendment 48 not moved.
Clause 19 : Medical examiners
Amendments 49 to 63A not moved.
Clause 19 agreed.
Moved by Baroness Finlay of Llandaff
63B: After Clause 19, insert the following new Clause—
"Indemnity for medical examiners and the Chief Medical Adviser to the Chief Coroner
The medical examiners and the Chief Medical Adviser to the Chief Coroner shall be indemnified by the Secretary of State in respect of—
(a) any costs which they reasonably incur in or in connection with proceedings in respect of anything done or omitted in the exercise (or purported exercise) of their duty;
(b) any costs which they reasonably incur in taking steps to dispute any claim which might be made in such proceedings;
(c) any damages awarded against them or costs ordered to be paid by them in any such proceedings; and
(d) any sums payable by them in connection with a reasonable settlement on any such proceedings or claim."
I am most grateful to the Minister for his comments in his summing up on the previous group of amendments. This amendment is pertinent to the creation of what I believe we might be now calling a national medical adviser, if we do get to that point. The need to have work indemnity has become more important within our society. I will let my noble and learned friend Lady Butler-Sloss speak a little bit about indemnity of the coroners as she is leading on that amendment, but certainly for the medical examiners and for the chief medical adviser, indemnity will be particularly important, and it is something which needs to be clarified—it needs to be crystal clear.
In the Minister's summing up on the previous group of amendments, he reminded the Committee that the coroner has no responsibility over natural death. In a way, that is exactly the problem, which is defining where the responsibility begins and ends. While a death may be unnatural, it is only after investigation that it is demonstrated to be natural, and similarly a death which is assumed to be unnatural may then during investigation be found to actually have had a natural cause.
It strikes me that within this system, and with the charter for the bereaved—which I do not dispute at all, and I think everyone welcomes and commends the Government on it—that there will be increasing room for certainly complaint, if not more. At the moment, as I understand it, those working as medical examiners should be indemnified by their PCT if their PCT is their employing body, but that has not been explicitly clarified. We know that indemnity by the PCT for routine medical work is in fact inadequate. Doctors are advised to have their own medical defence cover over and above the indemnity provided by the PCT or the trust, because the indemnity does not cover very much, but it is essential that it is there from whoever employs them. Of course if the medical examiners were to be transferred, as suggested in the previous group of amendments, to come under the separate employment line and answerability to the Chief Coroner, then the indemnity issue would be through the Chief Coroner, but it would not go away.
The new clause for indemnity for medical examiners and for the chief medical adviser to the Chief Coroner is there specifically to clarify first that indemnity will be provided by the PCT for the medical examiners that are in the Bill, and secondly by whoever turns out to be the employer of the probable national medical adviser. So the title of this proposed new clause is wrong and would need to be amended anyway because there is more work to be done outside Committee in clarifying who does what. Similarly another amendment in this grouping relates to expenses and it is important to know who is responsible for paying expenses for those people when they incur expenses in the course of their work. I beg to move.
I support the principles behind the noble Baroness's amendment. I shall speak also to Amendments 77ZA and 114A. As a former assistant deputy coroner in the Princess Diana inquest, I was judicially reviewed, successfully. My expenses were covered under Section 104 of the Access to Justice Act 1999, which inserted a new section into the Coroners Act 1988.
Coroners have shown me that there is nothing in the present Bill that replicates Section 104 of that Act, so Amendment 77ZA does just that. Its purpose is to replicate the existing indemnity enjoyed by coroners, who are extremely concerned, particularly with regard to judicial review, which is not all that unusual in the increasingly litigious age in which we live, and the possibility of some appeals outside the appellate process and on to either judicial review or the Court of Appeal. It is important that this should be in primary legislation. I doubt that it would be satisfactorily dealt with in subsidiary legislation, and currently there is nothing to show that coroners will actually be protected.
I am sure that the Minister knows, having been at the Bar, that judicial review is very expensive. I would have been extremely concerned if I had found myself having to face the costs, with four leaders in my particular review, of having lost in the Administrative Court. The loss was on the basis of incorrectly applying the law, as I was told, so this is a matter of law, not a matter of a coroner necessarily going wrong in the ordinary way of dealing with his duties as a coroner.
Amendment 114A would allow to the Chief Coroner and the deputy chief coroners exactly the same indemnity as coroners have at present—I hope that the Minister will see the appropriateness of coroners having it—in which case it would be necessary, for certain acts carried out by the Chief Coroner and deputy chief coroners, that they should also be indemnified. I hope that the Government will listen to these necessary protections for those carrying out an important part of the administration of justice.
I shall speak to Amendments 102, 104, 106 and 107 in my name and that of my noble friend Lord Thomas of Gresford, which are in this group. They relate to the issue of coroners' expenses. The Bill replicates the current circumstances, where it is the coroner's responsibility subsequently to claim for paying jurors, witnesses and so on, and for other expenses. The indication that colleagues have had is that this has put some coroners in the somewhat invidious position of being required to take on personal liability, sometimes of a substantial order, for the facilitation of inquests. An example given was stenography being required for a particular trial. As I understand it, we do not place judges in this kind of position, and I am puzzled by why we do so to coroners, if that is indeed the case.
The question of indemnity in respect of judicial review has already been extensively and appropriately spoken to. I understand the wish of the Government, although not all of us agree, that matters should be held at a local authority level. If that is the case, though, we would find it helpful that the local authority was identified as the appropriate place to bill rather than the coroners themselves. Whether or not these amendments satisfactorily address the question, we look for a response from the Government in that regard.
We believe that Schedule 6 sets out a clear yet flexible structure for paying allowances to jurors, witnesses, pathologists, coroners and others who claim. Similar amendments to these were tabled in the other place. In response, my ministerial colleague, Bridget Prentice, gave an understanding to take a fresh look at these provisions in the Bill. We have reflected carefully on the argument in support of the amendments, but our conclusion is that they would remove the current flexibility for paying allowances that coroners and local authorities, as well as the Government, wish to retain.
Amendments 102, 104, 106 and 107 would dictate that the relevant local authority must pay allowances to jurors, witnesses and others on behalf of a senior coroner and would prevent the coroner from doing so themselves from, for example, a delegated project. This restriction in the Bill would be of no benefit to the system, as it may evolve in the future.
I reassure the noble Lord, Lord Alderdice, that coroners will not have to fund allowances and expenses out of their own pockets. It is already implicit in the schedule that a local authority will ultimately fund allowances, given that the relevant local authority funds its local coroner. Regulations under paragraph 9 will provide for a coroner who has incurred expenses to be reimbursed.
In the majority of areas the local authority already makes payments directly, but in a small number of others the local authority and coroner prefer the coroner to make payments that the local authority then reimburses. The schedule gives flexibility for these existing arrangements to continue, and allows payments to be made either by the senior coroner or by the authority on his or her behalf. Schedule 6 was drafted in that way following representations from some members of the Coroners' Society.
The cumulative effect of these amendments would be to remove the ability for coroners and their staff to pay allowances. That would be unnecessarily restrictive, particularly as the coroner system moves forward on the back of these reforms, and would be unwelcome to some coroners and local authorities.
Amendment 109, in the name of the noble Baroness, Lady Finlay, deals with the expenses of medical examiners and the proposed chief medical adviser. We have already debated the merits of having a statutory chief medical adviser, so I do not propose to comment on that aspect of the amendment. On medical examiners' expenses, I am happy to reassure the noble Baroness that Clause 19(4)(b) already provides for regulations to be made for paying medical examiners' salaries, expenses, fees, compensation, pensions and other allowances.
I turn to the three amendments that deal with the issue of indemnity. Amendments 77ZA and 114A would indemnify coroners, the Chief Coroner and deputy chief coroners against any costs that they incur when carrying out their duties, against damages awarded against them or costs they are ordered to pay, and against any sums that they are ordered to pay as part of a reasonable settlement. Amendment 63B would similarly indemnify medical examiners. I will put to one side the issue of the chief medical adviser, which we have already debated.
Paragraphs (1) to (3) in Amendment 77ZA replicate the wording of Section 27A of the Coroners Act 1988, which states that coroners are indemnified by the local council. Similarly, Amendment 114A replicates the wording of a subsection of the 1988 Act, but applies the indemnity to the Chief Coroner and deputy chief coroners. Amendment 63B applies that wording to medical examiners.
The noble and learned Baroness, Lady Butler-Sloss, is concerned that the Bill does not provide for coroners to be indemnified, which could make them liable to pay out of their own pockets any costs arising from legal proceedings. In addition, I understand her concern that the Chief Coroner and his or her deputies may also find themselves out of pocket, with no indemnity. The noble Baroness, Lady Finlay, has similar concerns with regard to medical examiners. I reassure the noble Baronesses that that is not the case. Under the Bill, coroners will continue to be indemnified by the local authorities that appoint them. Any costs, including damages or sums payable by way of settlement incurred by the Chief Coroner and deputy chief coroners will be expenses which will be met by my department. I will briefly explain how the Bill provides for this.
Starting with senior coroners, area coroners and assistant coroners, paragraph 9 of Schedule 6 to the Bill provides for regulations on meeting or reimbursing coroners' expenses. We will consult on draft regulations in due course, but we intend that they will cover indemnities by replicating the effect of Section 27A of the 1988 Act.
We see the expenses cited in paragraph 9 of Schedule 6 as covering not only miscellaneous monies which senior coroners have to pay out in the normal course of carrying out their duties, but also the cost to coroners of defending any claim brought in litigation, or of paying any damages or costs ordered to be paid if they lose.
Indemnifying the Chief Coroner and deputy chief coroners, paragraphs 5 and 6 of Schedule 7 provide for the Lord Chancellor to pay the Chief Coroner and his or her deputies remuneration, expenses and allowances. For these purposes, expenses will again include costs incurred when defending any claim brought in litigation and costs or damages ordered to be paid by them.
Moving next to indemnifying medical examiners, Clause 19(4)(b) allows the Secretary of State and the Welsh Ministers to make regulations for paying medical examiners expenses and other allowances. This would include reimbursing the cost to medical examiners of defending themselves in any litigation, and the payment of costs awarded against them as a result of such litigation, if such actions are brought personally against a medical examiner in respect of his work in that capacity.
In view of these explanations and assurances, I hope that the noble Baroness will agree to withdraw her amendment.
I hope the Minister will not think that I am unduly pernickety, but in reading paragraph 9 of Schedule 6, I did not read the word "expenses" as including costs or damages. That seems to me to be something that is quite separate from costs or damages. If I had been construing this in a court and was told that expenses covered this, I would have had my doubts. That is what made me raise this matter by way of amendment. Of course I read paragraph 9 of Schedule 6, and I am delighted about expenses, but I have my doubts. It may be that it is okay. It may be that "expenses" will be all right in regulations, but there is a question about ultra vires; are you able, under regulations, to treat costs and damages as coming within expenses in the primary legislation? I could see a question as to whether it was actually ultra vires, so I remain extremely concerned about the wording.
It is with some trepidation that I respond on a judgment on a point of law from such a senior person, but we are assured by parliamentary counsel that it can be properly construed to mean that. Moreover, we are assured that it is entirely proper to cover all these points in secondary legislation, and we shall be making it as clear as I have tried to do in my speech. We will certainly look at what has been said today, and if there is further clarity that we can provide before Report, we will do so.
I am grateful for the degree of assurance that the Minister has given, but while there is some flexibility, flexibility can be used helpfully or unhelpfully. For example, if the local authority is flexible in the time that it takes to make the payments, someone could be out a good deal of money for a considerable period of time.
Also, the concern is not whether the local authority might eventually pay the money, although that is a concern, but that if it is not prepared to guarantee payment in the first place, the personal liability will have to be undertaken by the coroner. I would like to press the Minister to help us by making clear that we will not have the position, as we have had on occasion in the past, when a local authority has refused in advance to guarantee that payment would be made, and therefore the personal liability at that stage had to be undertaken by the coroner, even though subsequently payment might well have been made.
I cannot go much further at this moment. My understanding is that the position is as the noble Lord is requesting, but we will look at the words very carefully and see if we can be even clearer that the essence of what we are saying is that no coroner will be out of pocket for doing his duty. We will try and craft that in proper language, and send even more assurance.
The reason we are where we are on this is that there are local arrangements in a number of areas where local coroners of local authorities feel that they are best served by maintaining those arrangements, and we do not wish to bring into law restrictions which would stop those local arrangements, where they are proving satisfactory to the coroners concerned and the local authority.
It is with some trepidation that I rise to sum up the amendments on indemnity. I fail to understand how expenses, which is a very charged word at the moment, can include indemnity for litigation costs incurred in defending litigation. I note that my noble and learned friend Lady Butler-Sloss has already questioned this. I have had conversations with coroners separately who are extremely concerned that the Coroners Act, which currently provides indemnity on the face of the Bill, will be superseded by this Act, where there is not that degree of clarity. I understand their concern. I do not feel greatly reassured. I wonder, as a non-lawyer, whether we could get around this by a very simple insertion to say that it includes costs incurred in defending in litigation for work undertaken in the course of their duty, or something along those lines. That is not for us to do tonight, but I am convinced that we will return to this. In the mean time—
Amendment 63B withdrawn.
Clause 20 : Medical certificate of cause of death
Moved by Lord Alton of Liverpool
64: Clause 20, page 12, line 4, leave out "may" and insert "will, having consulted the Chief Coroner,"
Clause 20 looks at the issue of medical certificates detailing the cause of death. Amendments 64 and 66 in this group stand in my name and that of my noble friend Lady Finlay of Llandaff. These two amendments need to be read together. The effect of Amendment 64 would be to make an alteration in line 4, page 12, leaving out the word "may" and instead inserting the words,
"will, having consulted the Chief Coroner".
As it presently stands the Bill says that the Secretary of State,
"may by regulations make the following provision in relation to a death that is required to be registered under Part 2 of the 1953 Act".
It then goes on to list a considerable number of provisions. My amendment would require the involvement of the Chief Coroner.
Amendment 66 would make an addition at page 13, line 19, by inserting the words:
"An attending practitioner's certificate prepared under subsection (1)(a)(i) will replace the existing separate certificates issued for Cremation and Burial under the Cremation Acts 1902 (c. 1) and 1952 (c. 31), and the Births and Deaths Registration Act 1953 (c. 20) respectively".
Current arrangements for death certificates reach back to the 1800s and there has been little change since 1935. The Shipman inquiry stated that the existing arrangements for certification were confusing and provided inadequate safeguards for the public. That is a view with which Tom Luce—who chaired the fundamental review of death certification and the coroner service in England and Wales—concurred. I was surprised when looking at the death certificates that are currently in use to see how long ago it was since we made any fundamental change to the death certification process. The certificates authorising cremation were given statutory standing in 1902 and 1952 and the burial certificates were prescribed by the Deaths and Births Registration Act 1953, with regulations following in 1987.
There is, I think, broad consensus and support for the general thrust of the Government's intentions to reform the system of certification, and I certainly welcome that. I note that the British Medical Association has, for instance, given a guarded welcome, although it does raise two questions that perhaps deserve a response from the Minister today. It says that it would like to see the introduction of short death certificates alongside the medical certificate of cause of death as proposed by the 2002 Office for National Statistics report, Civil Registration: Vital Change: Birth, Marriage and Death Registration in the 21st Century. It also argues that the right to confidentiality extends beyond death and that the bereaved should have the option of withholding the cause of death when disclosure is not required. Although it may be necessary—for instance, as a requirement stipulated by an insurance company—to know the cause of death, or, as we debated earlier in Committee, for statistical information vital to the construction of public health policy to include cause of death, we have to accept that it can also be distressing to relatives to be required to disclose sensitive information to organisations such as utility companies for which it is not necessary to have access to that information. I think that these are reasonable concerns which the BMA has raised and which we should ponder on. I wonder whether the Minister, with his usual alacrity, sees a way through that dilemma. I should be grateful to him for his response on those important points.
I would also be grateful if the Minister will tell us about the funding of the PCTs and the local health boards which will be required to make available to medical examiners the disclosure of their functions and whether we are satisfied that there will be adequate funds to deal with the changes to the certification process.
If we were able to accept the two amendments tabled today, it would abolish the two certificates currently in use and open the way to the introduction of the sort of streamlined procedures advocated by Dame Janet Smith in the Shipman inquiry. Indeed, she has produced a prototype form, copies of which I have here in the Chamber and which can be found in Appendix G of the third report of the Shipman inquiry at page 563. She believes that these integrated forms would overcome the weaknesses in the present system of certification which were identified in her inquiry. At Appendix M, pages 611 to 615, she sets out the details of how the new death certification would work in practice. It is indeed those proposals that are incorporated in these amendments. At the very outset of her report, on page 3—I referred to this earlier—she talks about the disadvantages of the present system. At the very minimum, I hope the Minister will agree that a pilot scheme trial-running Dame Janet's proposed system of certification might well be in order. My amendments would pave the way for the introduction of such certification and replace it—if I may be mildly critical of the half-hearted wording in the Bill, which simply suggests that the Secretary of State "may" proceed, a point which was referred to by my noble friend Lord Neill of Bladen in another context earlier today—with new certification and a duty on the Chief Coroner to get on with it.
What possible justification can there be in reserving this question to the Secretary of State? Surely this is a classic example of something that should be devolved through subsidiarity, in this case to the new Chief Coroner whom we are appointing in this legislation and whose duties should clearly include the production of new certification. We should trust him to get on with that, and mandate him to get on with it. That is the substance of my amendments. I beg to move.
My noble friend Lord Alton of Liverpool has explained the background to the first amendments in this group. I should like to focus on the amendment that is solely in my name, Amendment 72A, and explain the thinking behind it. It may not be correctly worded but I hope that we can make some progress on the principle behind it and end up with a short death certificate, or possibly a series of two that are fit for purpose.
The first instance, referred to in paragraph (a) of the amendment, covers cases where such certificates are needed,
"to confirm that death has occurred prior to the full death certificate being provided".
That is meant to deal specifically with brain-stem death. When somebody is diagnosed brain-stem dead, the diagnosis is made on the basis of brain-stem-death testing conducted by two doctors according to a clear protocol. The doctors usually, though not always, conduct the tests with a time gap in between, and they usually, though not always, witness each other's testing. However, the family is told that the time of death is the time of the second brain-stem-death test occurring. That is the time when the person is stated to have died. However, their heart may continue to beat and they may continue to be ventilated.
It is in such situations that the family is approached about becoming an organ-donor family. For the family, the whole situation is incredibly distressing. It is very difficult for them to believe that the pink, well-perfused, warm body in front of them is indeed dead, particularly when they see the chest rise and fall, there is still a pulse, and so on. However, the person is already brain-stem dead. He is irreversibly dead.
Some intensive care units issue their own certificates to such families to help them understand that the person is brain-stem dead and to help them cope with the subsequent process of organ donation. I have tabled the amendment to try to standardise the format of that certificate and to improve practice. Sadly, there are some families who have declined to donate organs because they had not understood that the person was dead. Indeed, I know of one instance, which to my shame occurred in Wales, in which a consultant whom I know gave the family inappropriate information about the child. The family believed that the child would not be certified dead until after the organs had been harvested. It was a disaster and the family understandably declined to donate organs.
The amendment would therefore clarify for the public the point at which death has occurred. It would give them a piece of paper with force in law which states that that was the time of death. After that the organs can be harvested from either a heart-beating or a non-heart-beating donor.
The second situation, dealt with in paragraph (b) of the amendment, is quite different. I fully accept that it is possible that I should not have dealt with both situations in one amendment and that it might be better if they were dealt with in regulation and secondary legislation rather than in the Bill. However, this provision deals with the situation, which has already been alluded to, where there has been a death, particularly in a small community, which the family understandably do not want all and sundry to know about, especially when they have to contact utility companies and so on. Perhaps there is a hereditary illness of which others in the family have not been informed. Indeed, the death may have come as such a shock that they are not ready to cope with the implications for themselves and their own children. It may be a death of which they are deeply ashamed; it may involve suicide, drug addiction, alcoholism and so on. It is not necessary for utility companies to know why someone has died, but it is necessary for them—and for housing authorities and so on—to know that someone is dead. That is the purpose of having a short death certificate. It would afford a degree of privacy to the person who has died when the cause of their death does not need to be known for the legal purposes following death. I hope that that clarifies the situation that I am trying to achieve with the amendment.
Our amendment in this group is, I hope, straightforward. It would allow a fresh medical certificate to be issued in place of an old one if there was a subsequent change in the perceived circumstances surrounding someone's death.
In another place, my honourable friend Mr Henry Bellingham raised the case of a constituent whose relative died. The original certificate recorded the cause of death as "not ascertained"—it was not possible to say at that point how death had occurred. When later it emerged that the person had been unlawfully killed, the certificate could not be changed—all that could be done was to make a note in the margin. Plainly, this was very distressing for the family. I accept that our amendment is wide. However, it is intended to cover a wide set of circumstances. It has the merit of being helpful for the bereaved, and would do away with unhelpful and overbureaucratic rules.
Amendment 67 in this group is a technical government amendment designed to avoid any unnecessary requirement to make regulations under the Cremation Act 1902. The medical examiner system will replace the system of certifying cremations in the statutory forms set out in the schedule to the Cremation (England and Wales) Regulations 2008. Currently, the doctor who attended the deceased and an independent doctor complete these forms, which are checked by a medical referee at the crematorium before cremation can be authorised. The medical referee's role will be replaced by that of a medical examiner appointed under Clause 19. Therefore, the bulk of the current regulatory framework will be replaced. It is important, however, that the regulation-making powers contained in other legislation, including the Bill, do not have the unintended consequence of retaining what would clearly be superfluous regulation. In due course, I will move a government amendment on this matter.
I turn to the other amendments so ably moved in this group. Amendment 64, in the name of the noble Lord, Lord Alton, requires the Secretary of State to consult with the Chief Coroner on the regulations set out in Clause 20 that relate to the work of medical examiners. Our thinking in relation to the noble Lord's amendment is that it is not necessary to set out in the Bill a specific requirement for consultation. I assure the noble Lord that the Department of Health intends to consult widely on the secondary legislation required to implement the new death certification regime. I certainly expect the Chief Coroner, once appointed, to be among those who would be consulted about regulations made under this clause. Equally, there will be other important stakeholders whom it would be appropriate to consult. We do not consider it necessary or appropriate to single out the Chief Coroner as a statutory consultee.
Amendment 65, tabled by the noble Lord, Lord Kingsland, introduces a general and open provision enabling an attending practitioner to issue a fresh attending practitioner certificate to replace the one he or she first issued. An attending practitioner must certify the cause of death to the best of his or her knowledge and belief at the time of death. If unable to do so, or there are reasons for further investigation of the death, he or she will have a duty under regulations made in Clause 18 to report the death to a senior coroner without completing a certificate.
Under the provisions of Clause 20, a completed attending practitioner's certificate will be scrutinised by a medical examiner before the death can be registered and documents can be issued allowing a funeral to take place. Errors, omissions or concerns about the accuracy of the information recorded on an attending practitioner's certificate will come to light either when a medical examiner reviews the certificate and speaks to relatives of the deceased about the cause of death, or when a relative is interviewed by a registrar before the death is registered. For this reason, subsection (1)(c) of Clause 20 provides for either a medical examiner or a registrar to invite an attending practitioner to issue a fresh certificate. We think that this is preferable to a situation where the attending practitioner can change the certificate unilaterally if there is a change in circumstances.
I turn to Amendment 66, the second amendment tabled by the noble Lord, Lord Alton. Under the provisions set out in Clause 20, a medical examiner will scrutinise and confirm the cause of death stated on an attending practitioner's certificate. This requirement will be applicable to all deaths that are not subject to a coroner's investigation, regardless of the form of disposal. For this reason, a number of cremation forms currently issued under the Cremation Regulations 2008 will cease to be used. However, the certificate issued by a registrar under the Birth and Deaths Registration Act 1953, following registration of a death and prior to disposal, is being retained for a purpose under the proposed arrangements. This is because registration provides an opportunity for relatives to raise with an independent official any issues that might require investigation before a funeral takes place, and which, for whatever reason, were not brought to the attention of a medical examiner. We propose to retain this important additional safeguard at the request of stakeholders, including registrars and the Coroners' Society. That is why we cannot accept that aspect of the noble Lord's amendment.
The noble Lord asked about funding the medical examination service. The medical checks currently required before cremation cost families an estimated £45 million per year. The effectiveness of these checks, which are not subject to robust quality assurance, has rightly been criticised by a number of public inquiries, including the Shipman inquiry. Our preferred option for funding the proposed new system of death certification is a single fee for certification of all deaths, irrespective of whether death is followed by burial or cremation. The fee would replace the existing cremation fee of £160.50. As cremation accounts for some 70 per cent of disposals, most bereaved families would pay less under the new system.
I turn finally to Amendment 72A, an important amendment that has been debated. This would introduce short death certificates, to be issued in addition to full death certificates. The first type of short certificate is intended to speed up the possibility of organ transplantation after death by confirming that life is extinct. The noble Baroness, Lady Finlay, gave us an example of that. The organs could be removed as soon as possible in this instance. The second type of certificate would be a basic death certificate for families to use when dealing with administrative matters such as closing bank accounts after a person's death. The amendment is intended to prevent upsetting the family and executors further by revealing to others the cause of death, which might have a stigma attached to it as far as the relatives are concerned.
We sympathise with the aims of the amendment, and I assure the noble Baroness that it remains our intention to make provision for short death certificates in future; but we need to prioritise. Amendments to the Births and Deaths Registration Act included in the Bill have been limited to those that are consequential to the changes to the coroner system and the new death certification provisions. These are major reforms, and there are dangers in attempting to do too much at once—not least because the introduction of short death certificates would require IT changes, which, as I have indicated, would need to be prioritised against the other changes that we are making to the death certification procedures. We will, however, keep the position under review.
The noble Baroness said that perhaps she should have tabled two amendments, because she is dealing with two separate cases. She will gather in a moment that we are more sympathetic to the relatives' side of the case than we are to the organ donation side. As I say, we will keep the position under review.
The position on organ donation is rather more complex. We are not aware of any difficulties when the death is entirely from natural causes. However, if the circumstances of the death are such that the coroner may need to investigate, it will not be possible to remove organs from the body until the coroner has determined whether he or she has jurisdiction over the death. Once the coroner has decided that he or she does have such jurisdiction, a decision will need to be made as to whether particular organs may be removed without compromising the coroner's duty to investigate the cause of death.
It hardly needs saying that these are tricky, sensitive and delicate issues, but in view of the importance of ensuring a better supply of organs for transplantation, protocols between hospitals, transportation teams and coroners have been worked up, or are being worked up, across England and Wales. These will ensure that the appropriate balance is struck between the needs of families for a proper investigation into the death of a loved one—which may, in itself, reveal information to prevent future deaths—and the needs of those awaiting donated organs. I venture to think that the noble Baroness will not be entirely satisfied with my reply to the second part of Amendment 72A, but I hope she is more satisfied with the first part of my reply.
I am grateful to the noble Lord. I am satisfied with the bulk of his reply because it states the situation as it is at the moment. It is completely right that the coroner must be asked for permission if organs are to be harvested from a donor in whom the coroner has an interest of any sort. That is the situation at the moment. The death certificate that I wanted to introduce is quite simply and solely to give the family a piece of paper at the time of the death stating that the person is dead, and giving the time of death and the names of the two people who were responsible for the brain-stem death testing. At the moment, the family does not have that. It does not have the names of both people who were responsible for the testing. They may be different from the people who ultimately sign the death certificate. It was to get that clarity for the family that I sought this. This is a discussion that we will probably pursue outside Committee. There may be merit in the Department of Health producing guidance on producing a short form of documentation that is copied into the clinical record and could be given to the family. It would not have the legal status of a death certificate but would still tell the family the time and the names of those who did the testing; and confirm that it was full brain-stem death testing, because it is so difficult for families to come to terms with brain-stem death.
This has been a very helpful and thorough debate about these provisions in the Bill. I know that my noble friend Lady Finlay and the noble Lord, Lord Kingsland, will also want to reflect on some of the helpful points that the Minister has made. It certainly would not be my wish to push some of these questions much further. I was pleased when the Minister said that even though he was not prepared to put the role of the national coroner in working out new certification procedures on a statutory basis, there would nevertheless be proper consultation with him or her when they are appointed. I am also grateful to the Minister for his reply on funding. I had not heard that figure of £45 million before. I was glad to hear what he said about the need for more robust quality assurance and the introduction of a single fee, which would be less for families to pay in future. That is welcome too. The Minister made a remark about the need to guard against stigmatisation and the merits that there might be in a short certificate in guarding against that. I think there would be widespread agreement among the Committee over that.
The one matter that I would still like to press the Minister on, and which I will certainly think about further and would be willing to discuss further with him, is the introduction, at least, of some king of pilot scheme to try out the proposals that Dame Janet Smith and the Shipman inquiry team came forward with. My mind is always concentrated when I look at the examples that she gave me of certificates that were issued by Dr Harold Shipman. When I look at the cursory way in which some of these deaths, mainly of elderly people, were dealt with, I think it behoves us—in light of the enormity of the offences that were committed at that time—to consider the recommendations of Dame Janet and her inquiry team to streamline the way in which these certificates are issued after someone has died. Having looked through the explanatory note and proposals that she has put forward for a more unified form of certification, it would be sensible at least to trial this in some parts of the country to see how it works. I do not know whether that will be possible for regulation, but maybe I can correspond further with the Minister on that point. I beg leave to withdraw the amendment.
Amendment 64 withdrawn.
Amendments 65and 66 not moved.
Moved by Lord Bach
67: Clause 20, page 13, line 43, leave out from "consequence" to end and insert "of—
(a) provision made by regulations under this Chapter or by Coroners regulations, or
Amendment 67 agreed.
Clause 20, as amended, agreed.
Amendments 68 and 69 not moved.
Moved by Lord Alderdice
70: After Clause 20, insert the following new Clause—
"Cooperation between coroners and inquiries by statutory regulatory bodies
(1) The Care Quality Commission and its successors may request the cooperation of a senior coroner in the course of their investigations under the following circumstances—
(a) they are fulfilling their investigatory duties in accordance with the Health and Social Care Act 2008 (c. 14);
(b) there is reason to believe that a senior coroner has conducted an investigation which may be connected to an ongoing investigation by the Care Quality Commission as authorised under the Health and Social Care Act 2008;
(c) the senior coroner has been notified of a death of which a medical practitioner is aware, under section 18, which may be connected to an ongoing investigation by the Care Quality Commission.
(2) If a senior coroner receives a request under subsection (1), the senior coroner is required to cooperate with the request, and provide information including all relevant documents, subject to regulations made under subsection (3).
(3) The Secretary of State may by regulation—
(a) prescribe a period within which the requirement is to be complied with;
(b) prescribe cases or circumstances in which the requirement does, or does not, apply, and may in particular provide for the requirement not to apply during a period of emergency.
(4) All cooperation between a senior coroner and the Care Quality Commission must include the provision of all data gathered in respect to the provision of section 20."
Amendments 70 and 71 relate to the relationship between coroners, medical examiners and statutory health inspection organisations. This arises because of a difficulty mentioned by the Mid Staffordshire inquiry, which said that it had not received any co-operation from the coroner. This made it difficult to carry out a thorough investigation. The inquiry said:
"We considered that information from the coroner would be useful for the investigation. We were disappointed that he declined to provide us with any".
I do not suggest that this is common practice. Nor do I suggest that when there are new medical examiners they will, as a matter of course, take that approach. However, it is not the sort of thing that should be happening at all, so Amendment 70 reflects the proposition that the Care Quality Commission might have the power to require coroners—and, in the case of Amendment 71, medical examiners—to co-operate with investigatory tribunals. At present, the coroner can co-operate if he or she wishes, but in the case of the Mid Staffordshire inquiry the local coroner made it clear that he had no real interest in helping out in any way. If we are to ensure that the sort of investigation undertaken in such cases is as thorough as possible—and it is in all our interests that this is the case—perhaps it is necessary to do more than simply request or encourage coroners and, subsequently, medical examiners to co-operate and require them to do so.
There is no reason to believe that this would present coroners with huge extra work. These are not particularly common matters. Indeed, as I say, we do not mean by these amendments to suggest that it is common practice that coroners do not co-operate. However, the Mid Staffordshire inquiry was a case where having access to the coroner's records would have helped to identify cases where people died of preventable or negligence-related causes, connected to the processes and understaffing that were identified in the report. For that reason, I beg to move.
I thank the noble Lord for moving what I take to be a probing amendment concerned with the premature deaths at Stafford Hospital between 2000 and 2007. The Committee as a whole will want to express its regret to the families involved. At the time, as a report by the Care Quality Commission—then the Healthcare Commission—made clear, many of those deaths could and should have been avoided, frankly. The breakdown of which the noble Lord speaks between the commission, tasked with investigating the series of deaths, and the coroner, who had investigated some of the individual deaths at the time they occurred, was a perfect example of how those with related statutory responsibilities do not always work together effectively. That may be something of an understatement.
We will agree that we need to tackle that matter. One way is the enforcement route, down which the amendment might take us. However, existing measures in the Bill will address the issues raised by the case. The first important reform is that every death that is not automatically referred to the coroner will be scrutinised by one of the independent medical examiners checking the information given in the medical certificate as the cause of death. They will work closely with the clinical governance teams in primary care trusts and local health boards to collate key information on causes of death and use it to analyse trends and uncover unusual patterns. We believe that the high mortality rates among patients receiving care at Mid Staffordshire National Health Service trust would almost certainly have been identified by medical examiners.
Under current arrangements, with no medical examiners in post, it was for the doctors at Stafford Hospital to decide whether to report deaths to the coroner for investigation. Under Clause 18 there will be a duty for doctors, wherever they are based, to report certain specified deaths to the coroner so that no unusual, suspicious deaths pass unnoticed. Among the categories of deaths that are perhaps likely to be referred are where the death may be related to a medical procedure or treatment or where there may have been some failure of care relevant to the death.
Secondly, the national leadership role provided by the Chief Coroner, who will be able to liaise between coroners and organisations such as the Care Quality Commission, will help investigations to proceed smoothly. The Chief Coroner may also issue guidance to all coroners in relation to requests for information and may even intervene where there are disputes. With the assistance of his or her national medical adviser, the Chief Coroner will be able to identify unusual trends and pass on that information to those with an interest as well as publishing pertinent information in an annual report. We also expect that the Chief Coroner would want to review how coroners held information. That was a related difficulty in the Stafford case and we seek to make the systems used more efficient and consistent.
Finally, coroners in particular interact with a number of investigating authorities, all of which have their own statutory responsibilities. Mostly it is the coroner who is dependent on those authorities' reports before he or she can decide how to proceed with his or her own investigation. There are difficulties sometimes. The Coroners' Society does its best to sort out those difficulties and has skilfully negotiated protocols that govern the relationships. That is something that we intend the Chief Coroner will take forward in the future, but the Bill does not propose to place those various interactions on a statutory footing, although I know that the amendment suggests that we should do so.
I turn to the different position of medical examiners in relation to investigations by the Care Quality Commission. The Health and Social Care Act 2008 already gives the Care Quality Commission a number of powers that it is able to use for the purpose of carrying out its regulatory functions, which include carrying out investigations. As the noble Lord is aware, medical examiners will be appointed by the primary care trusts in England. Regulations under Section 65 of the 2000 Act allow the commission to require explanations from a chair, director or employee of an English NHS body, therefore enabling the commission to require explanations from primary care trusts in respect of the work of medical examiners. We are looking at whether those regulations need to be amended to allow the commission to require an explanation directly from a medical examiner.
The 2008 Act also gives the commission the power to require any information, document and records, including personal and medical records or other items that would include the provision of data, from English NHS bodies as well as the power to enter and inspect premises. The Act makes failure to comply with a requirement imposed by the commission an offence punishable on some reconviction to a fine not exceeding level 4 on the standard scale. The commission's remit does not extend to Wales, but similar functions are conferred on Welsh Ministers by the Care Standards Act 2000 and by another piece of legislation.
I thank the noble Lord for this short debate. We are not persuaded of the need to make express provision in the Bill for medical examiners to co-operate with inquiries conducted by the Care Quality Commission; existing powers suffice. I hope that that response will satisfy the noble Lord.
I am grateful to the Minister for his expansion and response, and particularly for his pointing up that the existence of a Chief Coroner is in a sense a port of call for the Care Quality Commission or for an inquiry should a coroner not accede to co-operative engagement. I take it that that is the impact of what he is saying. This is one of the Bill's important developments. If I have understood that correctly—I see that the Minister is nodding—that is an important point that we hope would not be necessary, but the fact that it is there may make it unnecessary because people know that there is that possibility.
I am grateful for the Minister's clarification that the Government are looking at regulations, so that in respect of medical examiners the Care Quality Commission would be able to press for co-operation and for people to produce material. I want to look at what the Minister has said in some detail, but if there is already progress in regard to proposed changes of regulations I would be grateful if it were possible to have sight of it at an appropriate time. With that appreciation and response I beg leave to withdraw the amendment.
Amendment 70 withdrawn.
Amendment 71 not moved.
Moved by Baroness Finlay of Llandaff
72: After Clause 20, insert the following new Clause—
(1) Where two doctors have to sign the medical certificate to allow cremation of the body or of human remains, both doctors shall retain a copy of the certificate for a minimum of 15 years, and shall supply the relevant copy or copies to the Medical Examiner on request.
(2) The second doctor signing the certificate shall have access to the clinical record that was maintained by the doctor who signed the death certificate.
(3) The Medical Examiner shall maintain a register of the first and second doctors signing certificates to authorise cremation."
I can be brief with the amendment because I have already received a lot of assurance from the Minister relating to it. The idea behind the amendment was to try to do something about the appalling quality of the examination that occurred when cremation certificates were filled out. I am delighted to see the end of what used to be called ash cash. It was completely wrong; it seemed completely inappropriate that when one had been qualified for a short number of years, one was suddenly able to graduate to receive this additional source of income. It is important that the examination of bodies to detect whether something has gone wrong is undertaken in a more appropriate and systematic way. The current cremation forms are completely out of date; they are difficult to fill out even if you know the cause of death, because the terms on them do not match modern medicine. I am delighted to have heard from the Minister in response to previous amendments that we will see the back of them and go over to a unified system with a single fee. I beg to move.
The amendment relates to the certificate signed by doctors to enable a body to be created. The system will be entirely replaced by the medical examiner system of scrutiny and medical certificates of cause of death. In the current system two separate medical certificates are required for cremation, which are checked by medical referees. These certificates will continue to be kept according to the relevant storage policy after the new medical examiner system is in place. They will remain available for inspection if required.
In future, medical examiners will scrutinise the medical certificates of cause of death for all deaths which are not referred to the coroner, whether the disposal is due to be by cremation or by burial. They will have access to clinical records as part of the scrutiny process. The full record of this process will be retained by the medical examiner's office for clinical governance purposes. The terms and period of record keeping for this system will be determined as part of the implementation process. That is yet to be determined but I reassure the noble Baroness that it is highly likely to be for at least 15 years. In the light of my explanation, I hope that the noble Baroness, Lady Finlay, will agree to withdraw her amendment.
I appreciate the Minister's response. However, I suggest that the Government consider that a duplicate should be kept by the doctor who has signed the certificate to form part of his or her appraisal process and appraisal folder, as the way they have filled out these certificates and undertaken examinations can be ascertained and gone into in a little more detail during the appraisal process than simply by looking at the certificate itself. In the mean time, I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
Amendment 72A not moved.
Clause 21 : Investigations concerning treasure
Debate on whether Clause 21 should stand part of the Bill.
I oppose Clause 21 standing part of the Bill.
The investigation of treasure finds is a small but historic part of a coroner's responsibilities, dating back to the 13th century. It is carried out on behalf of our national museums, those enthusiasts who spend their weekends scouring the countryside with their metal detectors, and very occasionally those people who have been lucky enough to find objects of value when digging in their own garden. Many areas in England and Wales are particularly rich in treasure finds, from Roman coins to Saxon hoards, and from medieval jewellery to civil war weaponry. Local knowledge of the types of finds is invaluable, and relationships have been established and nurtured over the years between local museums and finds liaison officers.
The government amendments that I intend to move in due course introduce a national coroner for treasure for England and Wales, which will help to improve the efficiency of the treasure investigation system. These amendments largely replicate the provisions for a coroner for treasure that were contained in the draft Coroners Bill, published in 2006. Following the consultation on those draft clauses and further reflection we have made a number of changes to the original proposals, and I hope the House will agree that the package set out here will achieve the best results for both treasure finders and the coroner system as a whole.
To put the amendments in context, in 2008 there were 610 treasure cases reported to local coroners: 610 investigations where the local coroner could have been investigating deaths. As my noble friend Lord Howarth of Newport and the noble Lord, Lord Redesdale, indicated at Second Reading, there have been areas around England and Wales where treasure cases have taken a particularly long time to resolve, falling outside the target time of 12 months to complete all aspects of the process in the Treasure Act 1996 code of practice. Establishing a coroner for treasure will help to expedite treasure cases but also enable local coroners to concentrate on their core responsibility for the investigation of deaths. The coroner for treasure, with his or her assistants, will be able to investigate each treasure case more expeditiously than a local coroner can, which will reduce the time taken for each investigation as well as improve the confidence that finders and landowners have in the system.
The new clauses introduce the distinction between investigations and inquests, so that treasure investigations have a similar structure to the reformed death investigations. It will still be possible for the coroner for treasure to summon a jury for a treasure inquest, although the starting position will be that one is not required, as I understand is almost always the case at present.
The new clause to be inserted by Amendment 84 provides for an exception on the duty of the coroner for treasure to investigate an item under the Treasure Act. This would be where the Crown, or the franchisee, if appropriate, did not want the item, even if it were found to be treasure or treasure trove. At present, although an item may be disclaimed at any time, there is no power for a coroner not to proceed with an inquest. Since the coroner will return the item to the person who found it, it effectively means that an investigation has been wasted. In the reformed system, the Secretary of State would need to certify to the coroner for treasure that the item is disclaimed, and the coroner will then return the item in accordance with the treasure code of practice.
The new clause inserted by Amendment 85 allows the code of practice made under the Treasure Act to cover situations where items are disclaimed, and closes the loophole where the coroner for treasure—the local coroner under the current scheme—is potentially liable to civil claims, even if he or she has acted in accordance with the code.
We believe that government Amendments 84 and 85 cover similar ground to Amendment 73 in this group in the name of the noble Lord, Lord Brooke of Stoke Mandeville. In view of this, I hope that the noble Lord will be satisfied with the outcome and will agree to withdraw his amendment.
One of the reforms in the draft Coroners Bill, published in 2006, was that there would be a duty to deliver an object to the coroner for treasure if a person was in possession of it. This was to prevent cases where a proportion of the find was kept for the finder's own gain; failure to deliver the object would have been an offence under the Treasure Act. Our Amendments 86, 88 and 89 tackle this issue in another way.
The coroner for treasure is given the power to order a person to give evidence at an inquest, provide a written statement, produce documents, and produce other items for inspection, examination or testing. This will include not only the item being investigated but any supporting evidence. This will ensure that the investigation is as thorough as possible. Finally, Amendment 212 extends the time limit for prosecutions under the Treasure Act.
I am aware that there have been difficulties with the usual six-month time limit, given the time taken to complete treasure investigations. I believe that the reforms will speed up the investigation process, but I am persuaded that there is a need for the time limit to be extended, by way of a certificate from the prosecutor, to a maximum of three years. This will allow any determinations of whether the item is treasure to take place where necessary.
Other government amendments in this group make provision for, inter alia, the appointment of the coroner for treasure and assistant coroners for treasure, for their training and inspection and for appeals against their decisions.
I hope that noble Lords who are involved in heritage issues—I see that a number of them are present—and interested in treasure will agree that this package of reforms is comprehensive and addresses the issues which currently affect the system. The reforms will encourage better reporting of finds, but more importantly they will help treasure investigations to be concluded more expeditiously, to the benefit of the finder, the landowner, and not least the general public, who may see the item on display in a museum.
When the Question that Clause 21 stand part is put, I shall invite the Committee to vote against it.
I rise to speak to Amendment 74 standing in my name and that of the noble Lord, Lord Howarth of Newport. I welcome seeing so many members of the All-Party Parliamentary Archaeology Group present. This issue is of particular concern to the archaeological community. It would be churlish of me not to welcome the government amendments concerning the coroner for treasure. I believe this provision will make life a great deal easier throughout the country and cut costs for local authorities, which should not be underestimated. We often impose costs on local authorities. Centralising this matter will make the system simpler. It will make those who wish to deal with metal detecting in the legal fashion much more user-friendly. The great success of the Portable Antiquities Scheme in the British Museum and the large number of finds that have come into the public domain because of that scheme are to be welcomed. Therefore, the points made by the Minister are most welcome.
I am, of course, particularly grateful for Amendment 212, which increases the time during which these issues can be dealt with. When the scheme was not working as well as I hope it will, the six-month limit was far too short. There would be a slight problem with six months even in some cases where there is disputed ownership between the landowner and the metal detectorist. The longer period is welcome.
I am speaking to Amendment 74 to deal with another aspect, because an element of metal detecting is not legal. English Heritage's report on night hawking has shown the scale of the problem. There is the problem of a secondary market whereby people are able to destroy ancient monuments, dig up items of treasure and sell them. The issue is that the internet and sites such as eBay have made it possible for people to find a marketplace for goods which, ultimately, have destroyed much of the archaeological value of many scheduled monuments and other monuments. This issue should be looked at not just in a monetary sense. Violence has been involved in night hawking and it has been a major problem for landowners.
The problem we face is that many other European countries have looked at this issue and raised it with internet sites. As those countries have more stringent provision, those internet sites take the issue far more seriously. The purpose of my amendment is to raise a specific issue. Why is it impossible for the archaeological community to discuss with officials the substance of this amendment, even though the Minister has given assurances that that would not be the case? It has not even been discussed. This matter is of vital importance and its scale should not be underestimated. A Portable Antiquities Scheme survey found that the amount of treasure traffic on eBay was considerable and growing.
Before we bring the amendment back at a later stage, I should like the Minister at this point to initiate a meeting on this issue between officials and members of the archaeological community to find out why we cannot even discuss the matter. I do not intend to press the amendment this evening, although I cannot speak for my noble colleague, the noble Lord, Lord Howarth of Newport. I hope that we can have that discussion before the next stage of the Bill, because the issue is of such importance that it may be worth testing the opinion of the House on it, as we will not get the opportunity to debate it again for a long time.
I will, first, gently disclaim the Minister conferring on me the honour of being Lord Brooke of Stoke Mandeville. My title of Sutton Mandeville, perhaps appositely, refers to a medieval village with evidence of a Saxon watchtower on the site of the present church tower, which is early English and is listed as two-starred.
I apologise profusely to the noble Lord. I have an excuse for saying Stoke Mandeville. I will not tell him what that is, but I apologise.
I hasten to say in reply that I regarded it totally as a compliment.
My proposed new clause after Clause 21 deals with two of the issues covered by the government new clauses after Clause 24, to which the Minister so admirably spoke. I should record that similarities in drafting between my amendment and his are purely incidental, and, in an important respect, different. My proposed new clause deals specifically with the City of London, rather than as a general provision.
The Minister has given an account of the new provisions, so I shall be brief outlining the City of London context. The City of London has a treasure franchise as the result of a number of royal charters granted between 1444 and 1663. The franchise entitles the City to claim treasure which does not, therefore, pass to the Crown. The Museum of London, which the City Corporation jointly funds with the Greater London Authority, is given the first opportunity to acquire treasure subject to the City's franchise for public display.
Of course, not all finds of treasure are wanted by the Museum of London. Where a find is not wanted, the general rule is that the objects are returned to the finder. In other words, the City disclaims its entitlement to the treasure. The problem in the present law is that the Treasure Act 1996 allows the Crown to disclaim its entitlement to treasure, but does not make similar provision for the City of London as a franchise holder or for other franchise holders, for that matter. The first purpose of my new clause is to deal with this ambiguity.
Subsections (2) and (4) of the government new clause to which the Minister referred, taken with subsections (1) and (2) of the second government new clause, provide a system enabling a treasure franchisee, and therefore the City of London, to disclaim finds of treasure. They therefore deal with the issue which my new clause addresses. The Minister's optimism about my reaction to his new clauses was correct.
The second purpose of my new clause is to make clear that there is no need for a treasure inquest where the City as franchise holder has renounced its right to claim the find. This has been a matter of concern to the City Corporation and to the City Coroner, and clarification of the law to make clear that no inquest is needed is highly desirable. That clarification is provided by subsections (4)(b) and (c) of government Amendment 84 in the form of a general provision which includes the City.
There are, however, two other points I should like to mention arising from the government new clauses. First, there is no requirement on the new treasure coroner to notify a franchise holder that a find which might be treasure has been made. Clearly a franchise holder will be an interested party as, unless disclaimed, the treasure will belong to that franchise holder. In the City's case, it provides the City with the opportunity to exercise its entitlement on behalf of the Museum of London to secure public display of important finds.
The notice procedure for Treasure which belongs to the Crown—which is the general position—is already catered for by Section 9 of the Treasure Act 1996. That requires coroners to notify the British Museum, which decides whether finds should be claimed by the Crown or returned to finders. There is no equivalent provision for treasure franchisees under the 1996 Act. Although finds of what amount to treasure usually come to the notice of the City or are notified by the coroner once known to him, it would seem appropriate to have an equivalent provision to the existing requirements in relation to finds which became property of the Crown as those that are subject to a treasure franchise, as in the City of London.
Secondly, the new clauses set out the general scheme for the new treasure coroner and assistant treasure coroners. The City of London is, of course, the oldest part of the capital and finds of treasure are fairly frequent. It has been said that the City has been for the past 25 years the largest archaeological site in the world—certainly in Europe—because of what has been discovered below it. The Museum of London looks after one of the world's leading archaeological research facilities, the London Archaeological Archive and Research Centre. I hope that the review of the work of coroners in relation to treasure inquests, which the Government's new clauses will prompt, will take full account of the important part played by the City Coroner in the treasure jurisdiction. I shall be wholly reassured if the Minister responds on both these issues in the affirmative. In the mean time, I acknowledge that the Government's new clauses cover the substance of my new clause. Although I am speaking to Amendment 73 after the noble Lord, Lord Redesdale, spoke to Amendment 74, I take this opportunity to support that amendment too. I was once the Secretary of State who encouraged the late Earl of Perth to pursue what became the Treasure Act 1996. His spirit would be happy to see the furrow continuing to be ploughed so sensitively by his successors. I thank the Minister and the Government for all their work in this area.
I, too, welcome the government amendments in this group that give effect to the Minister's pledge at Second Reading to establish a national coroner for treasure. I also welcome the amendments that would give effect to the Government's decision to extend the period permitted for prosecutions under the Treasure Act, about which he spoke just now. However, despite what my noble friend said, I do not think that the Government's response is yet comprehensive. I am sorry that he has not agreed to one of the other proposals that I made at Second Reading, which was more fully and better expounded by the noble Lord, Lord Redesdale. It is the subject of Amendment 74, which the noble Lord has just moved. I greatly look forward to hearing the observations on this amendment, as I hope we shall, from the noble Lord, Lord Renfrew, who is the doyen of parliamentary archaeologists—or should I say archaeological parliamentarians?
Proposed new Section 8A in Amendment 74 would extend the duty to report a find to anyone who came into possession of an object where they had grounds to believe that it was treasure and had not previously been duly reported. This was in the Government's own draft Bill. The reasons for its omission from the Bill as finally published were explained by the Minister, Bridget Prentice, in Committee in another place on
"We are not convinced that it would be practical to monitor this wider duty, and it would inundate the Coroner for Treasure with finds which are not treasure within the meaning of the Act or finds which have already been investigated".
I add my plea to my noble friend and to the Government to think again. He says that it would not be practical to monitor this wider duty. There are duties under a great many laws that we do not monitor—if we did, we really would live under a Big Brother state. The law should establish particular duties and offences, and then it is the responsibility of the citizen to abide by them.
We need to close what some dealers and collectors unfortunately take to be a loophole. At present, the duty in Section 8(1) of the Treasure Act to report treasure rests solely with those who find the treasure in the first instance. Someone who subsequently comes into possession of an item of treasure and who may know or suspect that that item has been unreported may believe from reading the Treasure Act that they are in the clear if they hang on to the object, and indeed if they deal in it. I am advised that Section 329 of the Proceeds of Crime Act 2002 makes it an offence to be in possession of stolen property—in the case of potential treasure, property of the Crown or perhaps of the landowner. However, the Treasure Act 1996, in contrast to most of our laws, allows ignorance of the law to be a defence. Only someone who can be proved to have intentionally broken the law is liable to prosecution. Currently, the administrators of the Portable Antiquities Scheme seek to advise anyone who finds himself in possession of unreported treasure—perhaps a dealer in antiquities or someone who inherits an object—to report it, but it is hard to reach everyone and advice is no more than advice, so it is a weak position. Some dealers may be genuinely hazy as to their legal responsibilities; others, I think, are deliberately evasive about the legal position. Either way, it is not satisfactory.
For nearly three years, the British Museum has had an agreement with eBay to monitor its site for potential treasure. Of the 302 sellers of potential treasure questioned by British Museum staff, 6 per cent claimed that the find was an old find and therefore did not need to be reported; 2 per cent said that it was the finder's responsibility and not theirs to report; 26 per cent said that the find spot was not known—that is a very important finding; 18.5 per cent said that the find was foreign; 16.5 per cent gave other reasons why the find need not be reported; 22 per cent did not respond at all; and only 9 per cent of those questioned said that they would indeed report. It is evident, therefore, that vendors are buying potential treasure finds without carrying out due diligence. If the obligation to report were widened, as this amendment proposes, then the duty of due diligence would be strengthened, and there would be a new pressure on dodgy dealers.
I emphasise that there are wholly respectable dealers within the United Kingdom antiquities market. Worryingly and shamingly, however, a number of dealers and collectors in Britain are not respectable. I shall illustrate this from another context. We have recently read reports about illegal excavations in Afghanistan: 1,500 items are reported as having been looted there and intercepted at Heathrow. The National Museum in Kabul has put on an exhibition of artefacts recovered from Britain. It is a disgrace that there are dealers and collectors who are prepared to collude with this kind of looting, whether from sites of very important heritage abroad or of treasure in this country. We must deter such behaviour. We need to increase the powers of the police; we need to improve the practice and ethos of the antiquities trade; and we need to improve the reputation of the London market.
Those would all be benefits of Amendment 74 and they would be important benefits, even if the coroner for treasure were to be inundated, as the Minister fears. In fact, I do not think that the coroner for treasure would be likely to be inundated. If this amendment were on the statute book, dealers would be deterred from acquiring items that might be unreported treasure. In any case, dealers will not want to report where they do not need to do so. They do not want to get bogged down in paperwork, and they do not want the delays and the blight on being able to sell as an item passes into the coroner's limbo. In practice, 97 per cent of treasure cases are reported to a finds liaison officer employed under the Portable Antiquities Scheme and not directly to the coroner. These finds are then filtered through the finds liaison officer and British Museum experts. Another amendment might usefully state that a report can be made to a person nominated by the coroner for treasure and not directly and literally to the coroner for treasure. We should also supplement the stick with the carrot and extend the existing statutory reward scheme for reporting to third parties who report.
The Minister says that, rather than have this amendment, a better course would be to improve awareness of the duties under the law. We should do that anyway. To that end, he says that his department will work with those who are involved with the Portable Antiquities Scheme—the DCMS, the British Museum, the National Council for Metal Detecting and the Council for British Archaeology. The noble Lord, Lord Redesdale, raised this question. Will my noble friend tell the House what the timescale for this consultation and co-operation will be? I understand that the DCMS has been saying that it cannot discuss the proposed way forward with the British Museum, which has a statutory duty to administer the provisions of the Treasure Act, until after this Committee stage debate. Why the delay? Will he commit his department to embarking on this process straight away?
The first part of Amendment 74—the proposed new Section 8A—is supported by the All-Party Parliamentary Archaeology Group, which consists of 135 members of all parties in both Houses; by the Treasure Evaluation Committee, which was appointed by the Secretary of State to advise the Government and affirmed its support for the amendment at its meeting on
We can dispose very quickly of proposed new Section 8B, the second part of the amendment. This would give the coroner for treasure the power to require any person to hand over any object which, for the time being, the person had control of and which the coroner proposed to investigate as potential treasure. Bridget Prentice said in Committee on
"There has never been a case under the current system where anyone has refused to hand over an item".—[Official Report, Commons, Coroners and Justice Bill Committee, 24/2/09; col. 299.]
Since then, such a case has occurred—a 14th century silver piedfort—and that case is now in the hands of the police. However, my noble friend, in his letter of
First, I strongly support the government amendments, which are admirable. The Government have a very good record in this area. They have supported the working of the Treasure Act and they have admirably put resources into the finds liaison officer scheme, for which the heritage community and archaeologists are very deeply grateful.
So I think the Government have a very good record in this area. They also, in the end, supported—I am not saying that they initiated it—the Dealing in Cultural Objects (Offences) Act 2003, which is an important part of the protection of the archaeological heritage. We are therefore very grateful to the Government for the amendments which have been proposed, including the coroner for treasure. We have nothing but praise for those elements, but that makes it all the more strange—as the noble Lords, Lord Redesdale and Lord Howarth of Newport, have indicated—that Amendment 74 has not yet been supported by the Government. Indeed, we are mildly surprised that it was not proposed by the Government, since there were earlier hints that such might have been the case.
The case for that amendment has been admirably set out by my noble colleagues, so I will not repeat the arguments at length. But it is clearly a great lacuna in the present legislation that the only person responsible for reporting a treasure find is the finder. Naturally, the finder should be responsible: that is the basis of the 1996 Act. It has been demonstrated through experience, however, that that is insufficient. It is clearly the case that, if a dealer is offered an object that he suspects is a treasure find—something found in recent years and obviously a gold or silver antiquity found on British soil—there should clearly be an obligation on him to report the find. That is a serious lacuna in the present Bill.
As the noble Lords who have spoken have indicated, the matter is complicated by the existence of eBay. A lot of the traffic in antiquities, including illicit antiquities, is now conducted by eBay, so it is important to have a legislative framework, which is now lacking. So far, it has been very difficult to understand what the Government's objections are to this admirable Amendment 74, which was clearly in the mind of the Government at an earlier stage. I hope that the Minister will give us a very clear analysis. I think the noble Lord, Lord Howarth, has made very clear that it is unlikely that we shall be inundated by treasure finds, and if we were inundated by newly reported treasure finds, it would be a very brief inundation before the situation settled down. Moreover, it is the present case that coroners are assisted by the finds liaison officers, who very often, in practice, make the necessary investigations. That could happen if there were a spate of treasure reportings in the light of the acceptance of this amendment.
So, like the noble Lord, Lord Redesdale, I will be listening very carefully to the Minister's answer on this point. The archaeological community are as one on the matter. The noble Lord, Lord Howarth, has mentioned that there are metal detectorists who support the All-Party Parliamentary Archaeology Group. It is very significant that the Treasure Valuation Committee, which is appointed by the Secretary of State, unanimously supports the amendment, so it is very difficult to understand what the grounds are for opposing it. For that reason, I will listen to the Minister with particular care when he addresses us in just a moment. I hope that this amendment will be brought forward on Report once again if we are not totally convinced—I know the Minister is very eloquent—by his arguments. I warmly support the amendment.
I congratulate the all-party group on its success thus far in persuading us, along with other parties too, to change our minds, and for bringing these amendments to Committee today. When the noble Lord, Lord Renfrew, started praising the Government in such eloquent terms—if I may use that phrase—it was a very refreshing change from what one sometimes hears in this House and elsewhere. But I should have known, of course, that there was a "but"—or a "however" in his case—and indeed there was. I will do my best to deal with this issue shortly this evening.
One thing I can say is that I make the following concession—though it is not really a concession at all at this stage. That is, of course, that we will meet with noble Lords and others between now and Report to discuss the first part of Amendment 74, in the name of the noble Lord, Lord Redesdale. We will certainly arrange a meeting; there is no reason whatever for not having one.
There are two points raised by noble Lords on Amendment 74. The amendment seeks to extend the duty to report treasure finds to those in possession of objects as well as the finders of such objects. Secondly, the amendment seeks to impose a duty on those in possession of objects to deliver them to the coroner for treasure. We accept that there is widespread support for the amendment: there is no reason to disbelieve that at all. But our conclusion, on reflection, is that it just would not be appropriate to go that far to widen the obligation to report treasure finds. Of course, there may well be finders selling treasure items and not reporting them, and those finders remain liable for offences. The real reason why we cannot accept the amendment is that we are just not convinced that it would be practical to monitor this wider duty. In spite of what has been said in Committee tonight, we feel there could be a great deal more work for the coroner for treasure, with finds which perhaps are not treasure within the meaning of the Act, or finds which have already been investigated.
Our reasoning has been put in the letter mentioned by my noble friend Lord Howarth. We believe that a better course would be to improve awareness of the existing duty to report finds among those with an interest in the treasure system. I will repeat what is in the letter: we will continue to work with the members of the various groups that were mentioned by my noble friend to try to solve the undoubted problem that exists.
This is an issue that was raised in the Dealing in Cultural Objects Act. As the Minister has very kindly agreed that a meeting could take place, there is a slight problem that if one goes to one of those internet sites, they do say that they are not actually dealing in the objects themselves—they are just information providers. Without their services, however, it would be impossible to sell these objects. Of course, it is creating a market place which is growing, and I very much hope that the Minister—though he points out that it might provide a great deal of work for the coroner—would recognise that some incredibly important item could end up on eBay and it would be almost impossible to pull it up under the Treasure Act. If the Rudge cup had ended up on eBay, there would have been an outrage, but there is nothing to stop something of such significant value ending up in this position. The recourse of the archaeological community to stop the sale would be very limited indeed.
I take the noble Lord's point, and it will no doubt form part of the discussion we will enjoy between now and Report. As to the second part of Amendment 74, my noble friend Lord Howarth dealt with it successfully. The bespoke duty to deliver objects is no longer necessary, given that our own government amendments will extend to the coroner for treasure the powers of senior coroners in paragraphs 1 and 2 of Schedule 4. As a result, the coroner for treasure will have the power to issue a notice requiring a person to produce an object to him or her for inspection, examination or testing. We believe this approach will adequately address the point.
The noble Lord, Lord Brooke of Sutton Mandeville, was gracious enough to tell the Committee that he would withdraw his amendment in due course. I will try to answer at least one of his questions: why is there no duty to report a find to a franchisee on whose land an object is found? A find must currently be reported to the local coroner. Our changes will see a duty to report any find to the coroner for treasure. The franchisee will be an interested person and will consequently be kept informed of the investigation's progress once the location of the finding is established. This area may be a matter for incorporation into the code of practice that is to be developed. We will continue to work to improve knowledge of the rules on treasure. That is all I have to say this evening on this matter.
Clause 21 disagreed.
Amendments 73 and 74 not moved.
House resumed. Committee to begin again not before 8.40 pm.