Andy
Burnham: Clause 4(2)(d) enables the scheme to set out
circumstances in which proceedings under the scheme may not be started.
For example, it is envisaged that proceedings under the scheme may not
be started in respect of a case that has been previously considered
under the scheme, or where an offer in respect of the same injury has
previously been rejected. The intention of paragraph (d) is to avoid
cases that have already been investigated and found to be outside the
scope of the scheme having to be investigated again. I do not think
that the hon. Lady has any objection to that basic principle. She is
perhaps seeking some sharpening up of the wording. Where a patient has
already rejected an offer of redress under the scheme in respect of the
same injury, we intend that the scheme will provide that proceedings
cannot be commenced. The intention is to avoid the scheme member having
to start the process again and investigate the same case. The Bill
currently gives us what we need in making clear that that can happen,
so the changing of a “may” to a “shall” is
not necessary. It is possible that it would give greater certainty to
circumstances in which a case could not be commenced, but I do not
think that the Bill’s drafting is fundamentally wrong. The
clause enables those circumstances envisaged to be laid out
clearly.
Sandra
Gidley: The sort of example where I thought it would be
useful to have a clear indication of time scale is in the
investigation. It is easy to make excuses that people are on holiday or
study leave, and to say that it is difficult to get to the basis of the
facts. The investigation is important because it underpins the rest of
the proceedings. What is the problem with setting a time scale? What is
the problem with the word “shall”? I do not understand
the objections to it. We understand the need for matters to be resolved
quickly, so I should like to be clear about why that word is
rejected.
Andy
Burnham: I am happy to speak further with the hon. Lady
about the matter. If I understand her
correctly, she wants to create a situation in which the individual can
suspend the commencement of proceedings. However, the amendment would
not materially change the Bill. The Bill simply enables us to lay out
the circumstances in which an application under the scheme may not be
commenced. I studied English, not law, at university, but I do not
think that there would be any substantive change to the meaning of the
Bill if the “may” in paragraph (d) changed to
“shall”. The Secretary of State would still be able to
lay out in regulations what kinds of cases would be disqualified under
the scheme because they had already been considered and dealt
with. There is no
material change. If the hon. Lady has a different interpretation of the
paragraph, I shall be happy to give way to her again. However, I am
confident that the Bill does what we want it to do. No aspect is
weakened in any way. In due course, we shall bring forward clearly the
circumstances in which proceedings cannot be commenced for of the
reasons I have set out. I hope that I have reassured the hon. Lady and
I ask her to withdraw her
amendment.
Sandra
Gidley: I shall indeed seek leave to withdraw the
amendment, because I realise that there was a drafting error on my
part; I identified the wrong “may”
and “shall”, so I would be talking about something
completely different. I originally intended to change line 28, but we
can return to that another time. I apologise to the Committee and the
Minister.
Mr.
O'Brien: If such an amendment to line 28 came forward on
Report, that would not make legal sense either. It is a long time since
I practised law, but I do not think that there could be a
“shall” for a provision in respect of ministerial
discretion; that would convert clause 4(1) into a
duty.
Sandra
Gidley: I am not a lawyer, and I bow to the hon.
Gentleman’s greater knowledge. My main motivation is to try to
make things better for the patient, but I welcome the hon.
Gentleman’s clarification. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
4 ordered to stand part of the
Bill. Clause 5
ordered to stand part of the
Bill. Further
consideration adjourned.—[Huw
Irranca-Davies.] Adjourned
accordingly at two minutes to One o’clock till this day at Four
o’clock.
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