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Health Service Safety Investigations Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 6:29 pm on 29th October 2019.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 6:29 pm, 29th October 2019

My Lords, I should like to take advantage of speaking in the gap to return to a point that the Minister touched on briefly in her opening speech. It relates to the position of the devolved institutions. The background to what I want to say is provided by Clause 40, which provides that, subject to subsections (2) and (3), the Act is to extend to England and Wales only. There is an exception for Scotland and Northern Ireland in relation to Clause 18, but that does not relate to the point I want to raise.

The National Health Service, thank goodness, extends throughout the whole of the United Kingdom. It does not require a great deal of imagination to suppose that incidents that require investigation could affect the safety of patients in Northern Ireland and Scotland as well as in England and Wales. Although the Bill is very careful in Clause 2(4) to say that the apportionment of blame is not the purpose of the investigation, the fact is that the reports under Clauses 22 and 24 will contain information that may be of close interest to those who are pursuing proceedings in civil courts—possibly criminal courts as well, but mainly civil courts, I think—seeking damages for things that have gone wrong.

That brings me to Clause 25 and the point I wish to draw attention to. Clause 25 provides that, subject to subsection (3), reports under Clauses 22 or 24 are not to be admissible in any proceedings which are determining civil or criminal liability. But that is subject to the ability of the High Court to order that they shall be admissible provided that the balance is properly struck, for the reasons set out in the clause. That clause extends to England and Wales only, not to Scotland and Northern Ireland. The matter of concern to me is that unless there is an equivalent provision in those jurisdictions providing that information contained in these reports is not to be admissible, they will be admissible. Unless there is a prohibition on it, they will be admissible according to the ordinary rules.

The noble Baroness said that memoranda of understanding were being entered into with the devolved institutions, but I would like to be reassured that it goes further than just an understanding. One requires hard legislation to follow the line that Clause 25 very properly takes in these matters. It may be that the Minister can assure us that the memoranda of understanding extend to an undertaking by the devolved legislatures that they will provide equivalent legislation. If not, there may be something to be said for extending Clause 25 to Scotland and Northern Ireland. One understands, of course, the problem of getting any legislation through the Northern Ireland legislature in present circumstances.

My point really is to be absolutely sure that the carefully constructed provisions in Clause 25 are matched in Northern Ireland and Scotland, as well as in England and Wales.