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7 pm
Baroness Ashton of Upholland moved Amendment No. 91:
On Question, amendment agreed to.
Clause 132 [Judicial review: power to substitute decision]:
Lord Kingsland moved Amendment No. 92:
The noble Lord said: My Lords, the terms of the amendment may appear rather dramatic, but the intention is simply to extract an undertaking from the Government. Clause 132 concerns judicial review. Its specific purpose is to give the administrative court, where it quashes the decision of a lower court or tribunal, power to substitute its decision for the decision of that lower court. Normally when the administrative court quashes a decision, the matter is remitted to the lower court for reconsideration. However, the Bill says that, in the light of the quashing, where the decision that the lower court will take is obvious—where there can be only one decision—the administrative court is entitled to take that decision.
The Civil Procedure Rules, in particular Rule 54.19, contain a similar provision to the one in Clause 132, but its terms are cast much more widely than those in the Bill. I would like the Government to say that, when the Bill becomes a statute, they will use their best endeavours to ensure that the Civil Procedure Rules are amended so as to align their text with the text in the future Act. I beg to move.
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Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for returning to this issue and for indicating his purpose beforehand. As he rightly points out, Rule 54.19(3) covers similar ground to that contained in Clause 132. The rule is, however, drafted in a slightly different way from Clause 132, as he said, and is rather ambiguous. We do not consider it satisfactory. I will therefore ask the Civil Procedure Rule Committee to amend the rule in order to ensure consistency with Clause 132, and I hope that it will look favourably on that request. I hope that that reassures the noble Lord and that he now feels able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness. I could not possibly have asked for more than the response that I got. In those circumstances, I am exceedingly happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Newton of Braintree moved Amendment No. 93:
(2) In section 26 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57), omit subsection (6).
The noble Lord said: My Lords, I now find myself in the deeply uncomfortable position of speaking to the last amendment in a House that is largely occupied by people who are interested not in this debate, but in the next one. I can only say that I will keep my remarks to a minimum and, as far as I can with such notice, reduce what I have in front of me.
I have endlessly declared my interest as chairman of the Council on Tribunals. In respect of this amendment, I should also make the point that the Parliamentary Ombudsman is an ex officio member of the council and would be an ex officio member of the proposed Administrative Justice and Tribunals Council.
On the substance of the new clause, some of your Lordships may remember that as long ago as 1996, in his report on access to justice, the noble and learned Lord, Lord Woolf, recommended among other things that the relationship between ombudsmen and the courts should be broadened, enabling issues to be referred by ombudsmen to the courts and by courts to the ombudsmen with the consent of those involved. His report also recommended that the discretion of the public ombudsmen to investigate issues involving maladministration that could be raised before the courts should be extended.
The noble and learned Lord is unable to be present today, but he has authorised me to say that he is supportive of what I am seeking to achieve, which also, I understand, has the support of the head of the
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The purpose of what I propose is to get rid of some of the impediments. They were originally intended to make sure that ombudsmen did not trespass on or usurp the jurisdiction of courts or tribunals, but, over time, developing case law has narrowed the discretion of the ombudsmen in a way that has been seen to present them with severe difficulties and has created considerable injustice for complainants. That is what I am seeking to redress.
In putting forward this amendment, I am conscious that it could be argued that there are ways in which I might have gone further to facilitate co-ordination between the various strands. For example, it could be helpful to give the court specific power to suspend an investigation by the ombudsman where the court considers that it would not be in the interests of justice for it to continue; or, alternatively, to stay the court proceedings where the court considers that the ombudsman is better placed to investigate. I also believe that, where an investigation raises a question of law which needs to be determined, it would assist the ombudsman to have the power to ask for a ruling from the appropriate court or tribunal on that question.
Although I have not sought to cover those last points, with the legal advice available to me, I hope that the Minister will take them into consideration if, as I hope, she feels able to accept my basic point in principle, and that she will take it away for the attention of the expert drafting advice available to her with a view to bringing forward an amendment at Third Reading. I beg, rather breathlessly, to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Newton. I agree that the provisions that the amendment proposes to repeal, which, as the noble Lord said, go back to the original ombudsman legislation 40 years ago, could get in the way of effective and efficient redress of grievances and resolution of disputes. Much has changed in the courts, tribunals and ombudsman world. We need provisions that reflect a more sophisticated understanding of the proper relationship between these institutions.
I accept that we may well need to get rid of the absolute bar on ombudsman action when legal proceedings have been commenced. However, as the noble Lord knows, I need to take the opportunity to consider whether further measures might also be needed to achieve the desired result.
I also want to take the opportunity to consider whether there are other ombudsmen to whom any changes should apply, such as the Public Services Ombudsman in Wales. I am sure your Lordships will agree that these are important issues. I am keen that we should get them right. If the noble Lord agrees and is prepared to withdraw his amendment, I am happy to undertake to consider the matter further and come back to it at Third Reading.
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Lord Newton of Braintree: My Lords, as ever, the Minister could charm birds out of trees. On the basis of what she has said, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 135 [Protected functions of the Lord Chancellor]:
Baroness Ashton of Upholland moved Amendments Nos. 94 and 95:
“( ) In the entry for the London Building Acts (Amendment) Act 1939 (c. xcvii) after “109(2)” insert “and (4)”.”
On Question, amendments agreed to.
Baroness Ashton of Upholland moved Amendment No. 96:
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendments Nos. 97 and 98:
(a) section 134(1) and (2), (b) the repeal by this Act of any provision specified in Part 6 of Schedule 23 that extends to the Isle of Man, (c) sections 136 and 139(3) to (5) so far as relating to— (i) section 134(1) and (2), and (ii) the provisions of this Act by which the repeals mentioned in paragraph (b) are effected, and (d) this section and section 140.”On Question, amendments agreed to.
Baroness Ashton of Upholland moved Amendment No. 99:
“(2) The provisions of Part 6 come into force, except as provided by subsection (2A), in accordance with provision made by the Secretary of State by order.
(2A) The provisions of Part 6 come into force, in so far as they extend to Scotland, in accordance with provision made by the Scottish Ministers by order.”
On Question, amendment agreed to.
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Business
Baroness Royall of Blaisdon: My Lords, I point out that, as the Question for Short Debate is now the last business today, the time limit will be 90, not 60, minutes, and the time limit for Back-Bench contributions is therefore six minutes.
Health: Palliative Care
7.13 pm
Baroness Jay of Paddington asked Her Majesty’s Government how they assess the effectiveness of palliative care services; and on what basis decisions to fund additional services are taken.
The noble Baroness said: My Lords, I am very grateful to my noble friend. I had intended in my opening sentence to say what a good thing it was that this very important debate was now the last business and that therefore all the distinguished speakers would have a little more time for their contributions. I also thank everyone in advance for taking part in the debate. As this is my first opportunity to do so, I congratulate the Minister on returning to the Department of Health and on his promotion.
I congratulate the Government as a whole on their recent decision to develop an overall strategy on palliative care under the distinguished leadership of Professor Mike Richards. As the House will be aware, Professor Richards is the so-called cancer tsar for the NHS, but I understand that this project will extend well beyond cancer services to develop a much more general programme on how we look after people who are reaching the end of their lives.
I was surprised to discover that this is the first time that the health service has taken a systematic look at services for the dying. The founding father of the NHS, Aneurin Bevan, famously promised that care for us would go from the cradle to the grave and, in the 60 years since, the cradle has been properly looked after. Developments in obstetrics, maternity services and neonatal care have all ensured that at the beginning of life most people are well cared for, but there has been much less attention to the end. Perhaps it is a combination of social taboos and medical disinterest, which has far too often resulted in poor provision for the more than 600,000 people who die in Britain every year.
Personally, as a member of various local health authorities and, later, as a Minister for Health, I have always encouraged more and better palliative care for those at the end of their lives. I am a particular supporter of the hospice movement, which, as many noble Lords will know, has struggled for NHS resources over many years.
Nevertheless, I think that the Government's current review gives us an opportunity to take an overview of how we as a society want to develop those end-of-life services so that they are fit for the 2lst century. For example, can we assume that palliative medicine, if it is well resourced and expertly
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To start with, I am concerned about the exact remit and scope of palliative care. When I first became interested in this area, the explicit aim of palliation was, as I understood it, to control the pain and other physical symptoms of those suffering from terminal illness—specifically cancer. No one, of course, could possibly question those compassionate aims. In many cases, palliation involves very sophisticated drug therapy and medical treatment, and I pay a warm tribute to those specialists who have made so much progress in this field in the past few years.
However, when I look at some of the contemporary definitions of palliative care and listen to some contemporary practitioners, I sense what in other policy areas might be called mission creep. For example, the noble Baroness, Lady Finlay, who I am delighted is to speak in the debate and who is of course recognised as a leading specialist in this field, has introduced a Private Member’s Bill, which is to be heard by your Lordships very shortly, to create a duty on the NHS to provide universal palliative care. In the Bill, her definition of this care goes much further than the relief of physical symptoms to include,
I wonder what exactly is intended by that, what it should include and, very importantly, how such provision would be evaluated. How and on what basis, for example, would NHS performance managers measure the efficacy of spiritual interventions?
I raise that not least because, as a member of the Select Committee on the Bill on assisted dying introduced by the noble Lord, Lord Joffe—I am delighted that he, too, is in his place tonight—I heard some palliative care practitioners make what I thought were extravagant claims for their services. Several witnesses asserted that appropriate palliative care could alleviate all the possible suffering of all patients at the end of life. They were certain that that could include psychological problems, emotional difficulties and what one could call the more existential issues of loss of dignity and personal control. One consultant physician claimed that if patients would, in his words, co-operate and “let go”—in a particular religious context, I understood—then they would always, again in his words,
I deliberately use the verbs “assert” and “claim” to describe those witness statements because, although we heard individual examples from practical experience to support their remarks, the witnesses were unable to give the kind of research references which I think would be considered essential by most clinical specialities in a similar situation.
That is, indeed, my second concern about palliative care. There seem to be few randomised control trials and few peer-reviewed experiments to support the view that palliative care, in its broadest sense, is always effective. I believe that the noble Baroness,
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As a lay person, I simply note that the health service now places great reliance—in my view, quite rightly—on evidence-based therapies and payment by results to determine both policy priorities and resource decisions. I very much hope that these principles can, and will, be rigorously applied to palliative care.
A further important strand of this Government's health reforms has been to introduce the concept of patient choice. Personally, I have some difficulty in recognising patient choice in some palliative care practice that I have observed, and this is my third area of concern.
I was disturbed when the previous chairman of the Ethics Committee at the Royal College of Physicians told your Lordships’ Select Committee that palliative care could become,
As your Lordships will be aware, the Commission for Patient and Public Involvement in Health has existed since 2003 precisely to give proper expression to patients’ views in developing services; in the commission’s words,
I hope that, as Professor Richards develops his end-of-life strategy, he will work closely with the commission and other representational bodies. We already have some relevant research results, and obviously need more in greater depth. I was interested in the report this month from the Journal of Medical Ethics of interviews with 41 terminally ill patients. The majority of those interviewed wanted a change in the law to allow people like themselves to choose when to die. I obviously appreciate that the Department of Health’s current work can consider end-of-life strategies only within the present legal framework, but I am also aware of growing public pressure to widen the debate about how we die. The Minister will not need reminding that the 2007 British Social Attitudes Survey published last week showed that 80 per cent of the public now support voluntary euthanasia for the terminally ill.
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