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Motion on Amendment 45

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 45.

45: After Clause 118, insert the following new Clause—

“The Health and Social Care Information Centre: restrictions on disseminationof information

(1) Chapter 2 of Part 9 of the Health and Social Care Act 2012 (the Health and Social Care Information Centre) is amended as follows.

(2) In section 253(1) (general duties), after paragraph (c) (but before the “and” after it) insert—

“(ca) the need to respect and promote the privacy of recipients of health services and of adult social care in England,”.

(3) In section 261 (other dissemination of information), after subsection (1) insert—

“(1A) But the Information Centre may do so only if it considers that disseminating the information would be for the purposes of—

(a) the provision of health care or adult social care, or

(b) the promotion of health.”

(4) After section 262 insert—

“262A Publication and other dissemination: supplementary

In exercising any function under this Act of publishing or otherwise disseminating information, the Information Centre must have regard to any advice given to it by the committee appointed by the Health Research Authority under paragraph 8(1) of Schedule 7 to the Care Act 2014 (committee to advise in connection with information dissemination etc).””

Earl Howe: My Lords, this group covers issues relating to health and care data. I will speak to Amendments 45, 49 and 50. The Government are fully committed to the principles of the care.data programme and to the core principles that underpin its use, namely: to promote transparency in the quality of health and care services while at the same time protecting privacy and confidentiality; to promote health and care research; and to better integrate health and care services.

The data collected across health and care in England are the envy of the world. The care.data programme offers the ability to link existing data securely and safely in order to produce information that can save lives, quickly find new treatments and cures, and support research to benefit all of us.

I say at the outset that, in my view, the care.data programme is very good news and offers a great deal to help improve our country’s health and care system. However, in order to realise its huge potential, patients and professionals must have absolute trust in the way that data will be protected and used together with an understanding of why collecting data on such a big scale is important.

5.15 pm

The care.data programme has been the subject of much discussion and debate in recent months, with concerns expressed by patients and professionals that insufficient assurances have been given about who would have subsequent access to the data once they had been collected by the HSCIC, the information centre, and how it would be used. My department and NHS England are continuing to engage with people in order to listen and respond to these concerns. In March my right honourable friend the Secretary of

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State announced a package of measures to enhance the protection of people’s data. Some of these measures would be given effect through the amendments I will speak to, and NHS England is now conducting a minimum of six months of engagement with stakeholders to listen to their concerns, to consider and debate these openly and to develop its response.

Before I turn to the amendments I will clarify several misapprehensions about the nature of the care.data programme and what it will mean for how data will be used. It is important to frame the debate in its proper context by being absolutely clear about how information may or may not be used in the current and proposed legislative framework.

The 2012 Act provided the information centre, the HSCIC, with new powers to collect information. These new powers laid the foundations for the care.data programme and provided the basis for the unprecedented opportunity we now have to use information to improve care and treatment. What the 2012 Act did not change, and what will not change under this Bill, is that whenever the HSCIC or any other body shares information that names an individual or from which an individual’s identity could be ascertained, there must be a legal basis for it to do so. It is important to stress that nothing in this Bill, the 2012 Act or anything we are seeking to do outside of it will create any automatic entitlement to receive information of this kind from the HSCIC. We have no intention of allowing that.

I stress this point in particular, as I understand that it has been the subject of some confusion. There is already a strong legal framework protecting the confidential and identifiable data held in people’s health and care records, not just the information held by the HSCIC but more generally. The Data Protection Act, which implements the EU data protection directive into UK law, provides powerful protection of information about living individuals. To summarise what is a lengthy and complex provision, it requires all such data to be anonymised except where there is good reason to the contrary.

It remains the case that the Data Protection Act continues to offer strong protection of personal data. There are criminal and civil penalties, with the Information Commissioner’s Office in certain circumstances able to impose a civil penalty on a data controller of up to £500,000. The HSCIC already uses strict controls in line with the Information Commissioner’s Office’s published code of practice on anonymisation which relates to the Data Protection Act. For example, if there is any risk of reidentification, and there is a legal basis that enables the HSCIC to disseminate the information, the HSCIC will put a legal contract in place with penalties for any misuse of the information.

The 2012 Act built on the protections in the Data Protection Act for information handled by the HSCIC by introducing a raft of safeguards to balance the huge benefits that linking health and care data can bring while offering greater protection for people than was the case.

The Act provided that the HSCIC must not publish any information that it obtains in a form that would allow an individual to be identified—other than a health or care provider; for example, a GP. Furthermore,

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the HSCIC must not disseminate information which could be used to identify an individual, unless there is a legal basis to do so; for example, because a person has consented to their information being shared or the requester of data has obtained approval under Regulation 5 of the Health Service (Control of Patient Information) Regulations 2002, which the noble Lord, Lord Hunt of Kings Heath, will, I am sure, remember. The Act also provided for greater transparency in the way in which the HSCIC exercises its functions, making its decisions to share information open to greater scrutiny than ever before, including a requirement to publish details of all the requests for information with which it complies and to publish a register containing descriptions of the information that it has obtained under the 2012 Act.

These safeguards have been further bolstered by a package of measures announced in March which, in addition to the amendments that I will speak to, reiterated the commitment previously made that, if a patient has concerns about his or her information flowing from their GP record to the Health and Social Care Information Centre, his or her objection will be respected. A key focus of NHS England’s engagement will be the operation of this opt-out process. We also committed to making regulations which would strengthen the rules around the use of pseudonymised data disseminated by bodies such as the HSCIC.

It is to this last point that I particularly draw the attention of noble Lords, for of course it is not just the protections and safeguards that we apply to the HSCIC that we must be concerned with if we are to win the trust of patients and professionals in the care.data programme; it is also the wider protections on the use and handling of data outside the HSCIC. Later in the spring, we intend to consult on regulations that would not only strengthen the rules around the use of pseudonymised data but create new safeguards around information sharing for commissioners, requiring pseudonymised data to be processed in “accredited safe havens” and clarifying the rules on when information about people in care, particularly the most vulnerable, must be shared. Of course, the Data Protection Act continues to offer a strong legal framework for the protection of personal data outside the confines of the care.data programme.

I shall be absolutely clear: no named or pseudonymised data may be shared by the HSCIC without a legal basis to do so, and this will not be changed by the care.data programme; the protections offered by the Data Protection Act will continue to apply to all personal data; the 2012 Act strengthened protections against the misuse of data collected by the HSCIC, and these protections will remain; the amendments I will speak to and the wider package of measures announced in March will further enhance the safeguards against the misuse of data; and it is equally important that protections are put in place to ensure that, once data from which the identity of a person may be ascertained have left the HSCIC, they are not misused. We are consulting on that issue.

I am confident that the amendments, taken with the other principles and measures that I have outlined, will give the public greater clarity and reassurance that

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their data are safe. Amendment 45 contains changes to the Health and Social Care Act 2012 which, taken together, clarify when the Health and Social Care Information Centre may and may not release data. The amendment expressly prevents the information centre using its general dissemination power for the dissemination of anonymised and certain other information—for example, where the data are of poor quality—where there is not a clear health or adult social care or health promotion purpose; for example, for commercial insurance purposes. Health promotion purposes would include wider public health purposes such as research into environmental factors associated with asthma, or for healthy eating.

I am sure the House would agree that it is essential that this valuable data resource is available to support a broad range of health research. Amendment 45 clarifies that, in carrying out any of its functions, the information centre must have regard to the need to promote and respect the privacy of those receiving health services and other adult social care in England.

Amendment 45 also requires the information centre to take into account advice from the advisory committee that the Health Research Authority is required to appoint under paragraph 8 of Schedule 7 to the Bill. The advice from the Confidentiality Advisory Group—the CAG—will provide a new level of independent scrutiny of the HSCIC’s dissemination of patient information, or information which enables the identity of a person to be ascertained.

Amendment 49 would enable the Confidentiality Advisory Group to advise the information centre on the exercise of functions conferred in regulations under Section 251 of the National Health Service Act 2006, or more generally on decisions to disseminate information which could be used to identify individuals. Amendment 45 would require the HSCIC to have regard to that advice. We are putting in place a further raft of safeguards.

Amendment 50 provides the Secretary of State with regulation-making powers to set criteria to govern the advice that the Confidentiality Advisory Group gives to the Secretary of State, the Health Research Authority or the information centre, in carrying out their duties.

This provision is intended to enable regulations which would require that the Confidentiality Advisory Group considers the purposes for which the data will be used, the need to respect and promote people’s privacy, and whether patient consent could be obtained, or anonymised data used, to achieve the same purpose. The intent is also that the regulations would create a “one strike and you are out” deterrent to discourage the misuse of these data.

Government amendments 45, 49 and 50 provide robust assurance that this kind of information may not be disseminated for purposes such as commercial insurance, or assessing an individual’s mortgage application, while ensuring that information may be disseminated to support research for health or care commissioning, for health and public health purposes, for medical purposes, or for other purposes relating to the provision of health care or adult social care or the promotion of health.

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I hope that that rather lengthy explanation—for which I apologise—has served to clarify some areas of uncertainty and has reassured noble Lords of the intent of these amendments, which are wholly positive and helpful in the context of the public concerns that have been raised in this area. I beg to move.

Amendment 45A had been withdrawn from the Marshalled List.

Amendment 45B had been retabled as Amendment 45F.

Amendment 45C (as an amendment to Commons Amendment 45)

Moved by Lord Turnberg

45C: Leave out line 15 and insert—

“(b) biomedical and health research.”

Lord Turnberg: My Lords, I am grateful to the Minister for that full and helpful description of the background to this whole area of the use of confidential information. There is little doubt that public confidence in the uses to which their confidential information may be put has been badly shaken. For example, a number of recent revelations that access has been gained by one means or another by commercial organisations, insurance companies and so on has made the public—and many general practitioners—very wary and anxious.

That is why I want to put my own amendment, Amendment 45C, into the context of Amendment 45F, proposed by the noble Lord, Lord Owen, which emphasises a much stronger oversight by a statutory body: similar to, but stronger than, the Confidentiality Advisory Group chaired by Dame Fiona Caldicott, who commands such public respect and confidence. That is why I intend to support it if he moves it.

It is only against that background—of strong oversight and carefully controlled and limited access to such sensitive data—that we can even consider the very specific circumstances in which we can allow their use: not only legitimate use, but those uses which are vital for the benefit of the public and their health.

5.30 pm

This brings me to my Amendment 45C, where we come to the exceptions under which access to such data will be allowed. Here the current wording of the Commons amendment, although well meant—we are pleased to have it—leaves open too many questions for interpretation. Their amendment suggests that use of patients’ data may be allowed for “the promotion of health”. This leaves us open to two types of possible interpretation that may be undesirable. For example, “promotion” could be taken to mean that food manufacturers could use data in their marketing campaigns for so-called healthy foods. That may or may not be desirable but it would put many off if it appeared that their data were being used for commercial gain in a competitive market.

On the other hand, the phrase “promotion of health” may be too restrictive and place limits on the types of research that may be carried out using patients’ data. I do not want today to rehearse the enormous value to

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patients and the public of research based on their data. No one doubts that anywhere; we have had many opportunities in this House to confirm that view from all sides. However, the research community out there, from the Academy of Medical Sciences, the Medical Research Council and the Association of Medical Research Charities—here I must express my interest as scientific adviser to the AMRC—to the Wellcome Trust, Cancer Research UK and so on, have all expressed concerns about the ways in which “promotion of health” may be interpreted and may limit some types of research. For that reason, I have suggested an amendment so that the words “biomedical and health research” are placed in the Bill so that we are absolutely clear what it is that we are aiming for.

The problem this is trying to avoid is the fact that it may not be apparent that much basic biomedical research may well not be immediately promoting of health. The implication of that research may also not be felt for some years. Then there is the issue that some population-based research—epidemiological research—may not appear to be promoting health. For example, there is much research carried out by perinatal epidemiologists who use data from GP and hospital records to examine the interaction between social factors and access to maternity services. There, we are in the realms of trying to interpret what “promotion” means in this and similar circumstances. It is there that we need absolute clarity. I believe we can achieve that with my Amendment 45C which, coupled with stronger oversight of who will have access and for what purpose, should provide the essential reassurance about the safety of data while ensuring that vital research can be carried out.

I know that my noble friend Lord Hunt has tried in his Amendment 45D to reach the same end result by suggesting that the interpretation of the phrase “promotion of health” should be placed in regulations but I much prefer primary legislation to secondary legislation for such an important topic.

I make just one further point, which concerns the impact of what we are trying to do in this legislation on the data regulations being considered in the EU at the moment. There are undoubted threats coming from the EU that would make the use of patient data so limited that much of our current research—cancer registries, bio-banks and so on—would be completely blocked. It is vital that we get our legislation right if we are not to add fuel for those who are promoting such restrictive regulation. I look forward to the Minister’s response and I beg to move.

Lord Hunt of Kings Heath: My Lords, I will speak to my Amendment 45D, although I may speak to the other two amendments, in the names of the noble Lords, Lord Owen and Lord Turnberg, as well, because they are relevant to the whole debate.

There is no question that the NHS has a rich reservoir of patient information. If we can exploit it to the full, its use could enhance care, aid early diagnosis and be a rich source of data for the development of new medicines and treatments. There is no argument at all here between the Opposition and the Government on this. The noble Earl reminded me that I took through legislation in 2002 that set the foundations for

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what we are now debating. He will recall that I was then arguing for us to use the potential of NHS information to the full. The noble Earl then, supported memorably by the noble Baroness, Lady Cumberlege, was a mite worried, I recall, about patient confidentiality. I think, however, that we reached a broad consensus that this is information to be brought together and used, but alongside safeguards that have public confidence. This is simply the issue that is before us at the moment.

Under the extension of the scheme, the Health and Social Care Information Centre can require GPs to upload patient data in an identifiable form from every GP practice in England. This will be linked to the Hospital Episode Statistics and other data sets. The information centre is a body corporate that can require a health and social care body to provide information—including confidential information. That is all well and good. The problem is that the centre and NHS England have botched its implementation, so much so that the scheme had to be withdrawn, originally for six months until the autumn, but my understanding is that the chief executive of the NHS, in evidence to the Health Select Committee, said that that date no longer applied. Perhaps the noble Earl could, when he winds up, comment on that.

My own view is that this is a dead duck. The Government will not be in a position to enable the scheme to go ahead any time before the election because so much public confidence has been lost. This is not surprising. Clearly, the information centre and NHS England took an inadequate approach in their public communications effort and there was a lack of effectiveness and accountability. It is clear that there are concerns about whether such information can be kept confidential in practice, and there is a worry that pseudonymised data could, in certain circumstances, be manipulated to identify a particular patient. There have also been concerns, referred to by my noble friend, about inappropriate use for commercial reasons, such as by insurance companies. I make a big distinction here: I would want the pharmaceutical industry to be able to use that information in research and development. That is absolutely legitimate.

There is also concern about general practitioners and their approach. Before the decision was made to suspend the scheme, there were worrying signs that a number of GP practices would not co-operate or would advise their patients to opt out of the system. It is important to recognise that we will automatically be part of the system as patients unless we opt out. Again, I agree with that principle. It is the only way to operate it. However, I am not convinced about having to go to my GP, if I can get an appointment, which is quite arguable at the moment, and having to talk to my GP—or, even worse, the receptionist—to say that I want to opt out of the scheme. There are real concerns about this system. Unless the GP body as a whole is confident that it is going to run with this, it will be destroyed because so many people will be encouraged to opt out that it will not achieve what it is meant to achieve.

I agree with the Royal Statistical Society which argues that we need a robust response to restore public confidence. Of course, I welcome the changes that the Government have made as a result of debates in the

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other place and in your Lordships’ House. The question, however, is: do they go far enough to restore public confidence? In my view, they do not. The Government have to make the bold statement that the system cannot be allowed to run under the people who are running it at the moment. They have lost people’s confidence. I cannot put this across strongly enough to the Minister: if you talk to organisations that know about the subject, you find that they are clear that they now do not have confidence in the people who are running the system.

That is why the Motion of the noble Lord, Lord Owen, is so important. He is basically saying that we need an external body that is independent and can give total oversight to the scheme. I support my noble friend’s amendment as well. I agree that it would be better in primary legislation than secondary, but there is no harm in having some secondary legislation to back up what we may agree in your Lordships’ House today.

In the Commons, the Government introduced amendments regarding the use of the term “promotion of health” for the purposes of the dissemination of information. Of course, “the promotion of health” could be a very open-ended definition. There was some fear in the other place that commercial companies—say, food and drink companies—could argue that they needed information for a public health campaign. My Amendment 45D seeks to provide reassurance by asking for regulations to be laid that are explicit about the circumstances in which information concerning the promotion of health can be used.

In supporting my own amendment, I say again to the Minister that there is no disagreement whatever about the importance of care.data, about the need for it to be successful or about the huge benefit to our country if it becomes successful. Success, though, is not guaranteed, and at the moment I believe it is unlikely unless the Government make changes. I hope that the House and the Minister will be sympathetic to these amendments.

Lord Patel (CB): My Lords, I will speak very briefly. I will not repeat everything that has been said but I support what was said by the noble Lord, Lord Turnberg, particularly about the use of data for biomedical and other medical research. I have been involved on several occasions with perinatal epidemiological research, and such data are vital for that. There is no doubt that we need to be certain that core data will be available for research purposes.

I had not thought that “the promotion of health” might be construed as applying to the food industry; I had interpreted the phrase to mean epidemiological and public health research. However, if the interpretation includes the promotion of health by the food industry, then of course I support it absolutely.

I would be content to have this in secondary legislation at this stage, as the noble Lord, Lord Hunt, mentioned. However, there is no doubt that the way in which the issue has been handled by Public Health England has lost confidence. It could have been handled better, and I hope that Public Health England has learnt lessons from it.

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Noble Lords: NHS England.

Lord Patel: NHS England, not Public Health England. My apologies; sometimes I do not focus well, for reasons that are not obvious to your Lordships. I have some problems that occur. I mean NHS England. I wondered why the Minister was looking at me so curiously. I was about to check whether I was dressed correctly.

I understand that NHS England got this information to the public by doing a mail shot to every household. Some people received it but most people I have asked, among friends and family, do not seem to have done so. On top of that, the mail shot was not clear about what it was asking patients and the public to do. It was actually asking them to decide whether or not they wanted to opt out of their information being collected. That is the kind of process that has brought about a lack of confidence in how this has been progressed.

5.45 pm

Listening to the noble Earl today, I am grateful to him for clarifying some of the issues. The key issue is public trust, and the trust of the professionals, that the confidentiality of the information will be maintained. To this end, I have been briefed by the Academy of Medical Royal Colleges, which has discussed this issue at length. It feels today that it will be supportive of the Government’s intentions in this legislation. The academy and individual medical royal colleges and faculties have all expressed their strong support for the principles of the care.data programme. However, they say that the public and medical professionals must have confidence that the system will provide the necessary privacy for individual patient information and sufficient protection against the misuse of data. The academy now wishes to see progress on the effective implementation of proposals that can secure public and professional confidence. The academy does not, therefore, want to see further unnecessary delay imposed on the project at this stage.

Equally, I support the view of the NHS England chief executive, Simon Stevens, which he presented to the Health Select Committee on 30 April, that there should not be an artificial timescale for the project and that issues of concern should be effectively addressed before the system is fully implemented. I support the current proposals for a phased roll-out and to trial, test, evaluate and refine the programme; and also for a clear explanation of the benefits to the patient.

The Academy of Medical Royal Colleges expressed some concern. The specific issue which I hope the noble Earl will address in his response is a clarification of what is meant by the “one strike and you’re out” provision in cases of inadvertent rather than deliberate error. On the definition of the resourcing of safe havens for storage and use of data that the noble Earl mentioned, he might like to comment on what he meant by the proposal to create a secure data lab for the handling of data that will maintain confidentiality; the exclusion of personal identifiers; the effective links to the patient records standards board programme to define the content of patient records; and the

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straightforward mechanisms for personal opt-out that retain the fundamental principle of being an opt-out rather than an opt-in scheme. I hope that the noble Earl will be able to comment on some of these issues of concern.

There must be a sustained programme with the support of the medical profession and all other clinical professions. The public has great trust in clinical professions, but not in managers of health—and nor, dare I say it, in politicians. Assuming that the points above are addressed and the pilot projects are successful, I hope that we can then move on to how we can progress this further. In this respect, can the Minister make a commitment that no changes to the law will be made to provide for the access of commissioners to this kind of data without further consultation and parliamentary scrutiny? Can he also say something about how the data will be handled in a secure way?

Lord Owen (Ind SD): My Lords, I speak to my Amendment 45E. A recent comment article in the Lancet starts off with the words:

“Trust in the protection of confidential patient data in England seems to be at an all-time low given recent breaches in releases of patient data and the finding that hospital data have been sold to companies with insufficient oversight”.

There is no question or doubt that the research base in this country—particularly the base in pharmaceuticals and medical bioscience—is now at a very high level. Of course, it is because of this that there is a very strong debate over whether AstraZeneca should be taken over by the very large American pharmaceutical company Pfizer.

However, we also have to recognise in this debate that without confidence and the free exchange of information in this world of science data, research will be very badly damaged. Already we know that very serious members of the medical profession want to institute not the present opt-out system but an opt-in system. Most of us know that that will make great inroads into the effectiveness of our data. There are also some GPs who, because of their concerns, now actively encourage patients to use their right to opt out. This is therefore very urgent, and I welcome that the Government, in recognition of the crisis of confidence, have instituted a six-month pause. I understand that the pause has now been extended and that there is no artificial deadline.

In that context, there is another root cause for concern. We have been making data available to the pharmaceutical industry and other areas of commercial science for some time. Perhaps I should declare an interest. For 16 years—I am now off the board—I was on the board of Abbott Laboratories in Chicago, one of the very big American healthcare companies. However, well before that I was a neuroscientist at St Thomas’s Hospital and worked in the early 1960s with ICI, using its remarkable pharmaceutical research product, beta-blocker drugs—one of the great discoveries which led to James Black winning a Nobel Prize. I therefore have no need to assure noble Lords of my belief that a thriving commercial sector in pharmaceutical and other research is an important addition to the research that goes on in universities and hospitals up and down the country.

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However, it is a fact that when you embark on a new extension of data being available to commercial operations outside the public sector, people demand and expect much higher safeguards. Before moving my own amendment and shoring it up, I looked very carefully at whether it was possible to get agreement on a mechanism to keep data in the public sector unless commercial organisations have expressed consent. That was seen by many people as blocking commercial activity, and it was not possible to reach agreement on it. That makes it even more important that we should have a statutory form of oversight.

The amendment I placed on the Order Paper proposes a new clause that would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel, which was set up by the Secretary of State. The present chairman, Fiona Caldicott, has the support of many people in this area, both in this House and outside. However, its present non-statutory terms of reference need to be given the authority of a statutory imposition. The new clause would also require persons and bodies across the health and social care system to have regard to its advice. It defines the relevant information; I strongly agree with the two previous amendments tabled by the noble Lords, Lord Turnberg and Lord Hunt. It is absolutely necessary to make it crystal clear what “promotion” means. It has different meanings in many different contexts—some perfectly acceptable and some borderline objectionable. There are other detailed aspects of the amendment, but it is pretty clear in its intent.

The medical profession is not the only body that ought to be considered in this. The Royal Statistical Society has made it clear that oversight and public trust in enforcement could improve the situation. It says that a new statutory body is likely to be needed to fulfil this role. Statisticians are as worried about the loss of confidence that is developing over medical data as anyone in the medical profession—they are the actual people who handle this.

I am pleased, indeed proud, that the amendment is supported by the Wellcome Trust. There is no better trust in the world than the Wellcome Trust. It is also supported by the charities that are associated with medical research, which also know the importance of the Wellcome Trust’s money and expertise. I have talked to the Minister about this and I will leave my comments for when I formally press the amendment, as I do not want to traduce what he is going to say to the House. He explained his position with his usual courtesy, but I remain of the view that, if we are to hold, restore and, in the future, enlarge public confidence—because I believe a greater exchange of information has huge potential—we have to listen to these concerns.

Whether we like it or not, people expect answerability, not just from NHS England, which is a quango, but also from the Secretary of State. Parliament has a role in this, and the issue is every bit as sensitive as some of the others that we brought under statutory oversight, such as embryology, the whole question of DNA and research into all these areas. We thought that they were so sensitive that Parliament should have a say, at least, and should know whether Ministers are taking

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actions that have qualifications, or even objections, from a statutory body so that we can make a determination. It is in that spirit that I will later seek to press the amendment.

Lord Ribeiro (Con): My Lords, when many members of the public, and patients in particular, feel that their data may be mis-sold to insurance companies or other bodies that may use them either to increase premiums or for their own personal benefit, then we have a problem. Earlier this afternoon we had assurances from the Minister that that would not be the case. This must be information that is used for non-commercial purposes, which has been made very clear. It is important, too, to remember that patients can opt out. I have heard these expressions about the difficulties that they may have with GPs who might prevent their doing so, but they have a choice. They may well opt out. I believe that if we go ahead with care.data and provide the information as needed, many patients, in time, will see the benefits of this and will choose to opt back in.

We have also talked about the need, again, to have anonymised data and to prevent it going anywhere other than the non-commercial areas. Patients also have a right to decide what to do with their data; it is enshrined in the NHS constitution that they have rights on the disclosure of their personal data. I personally feel that all patients should have their own information—they should have their own notes. They should have a memory stick with their records and have ownership of their records. They can then determine, in the circumstances, where that information goes.

Many people are horrified by the idea of patients having their own records. I had experience of this in 1973, when I was a surgeon working in Ghana. Patients would come with their own notes, moth-eaten and dog-eared. The reason was very simple: if their notes were in the hospital, a certain bribe had to be paid before those notes could be released. Patients have always been suspicious about what happens to their notes. Give them to them—that is what I would say.

The proposal from the noble Lord, Lord Owen, for yet another layer of scrutiny above what is being proposed, is something that we should consider very carefully. He referred to the fact that it would be for the Secretary of State and NHS England to make those decisions. However, noble Lords will recall that when we debated this matter not that long ago, the noble Lord, Lord Willis, and others put forward a proposal for the Health Research Authority. If this Bill goes through, the Health Research Authority will have the authority to decide how information is disclosed. Therefore, I speak very strongly in support of the care.data programme. It is important for patients to be reassured and that point has been well made from all sides of the House. They clearly have to have that reassurance. However, I see no need for an extra layer or an oversight panel. That would provide just one more barrier for researchers to climb.

6 pm

Lord Lester of Herne Hill: My Lords, the question that we are debating at the moment as we approach the enactment of the Bill is whether any extra words in

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any of these amendments are needed to provide more safeguards and greater public trust and confidence. The bit of law which is paramount but which has not been mentioned so far is the Human Rights Act. This Act, in Section 3, requires that all legislation, including this Bill, must be read and given effect to, if it is possible to do so, compatibly with the convention rights. One convention right, in Article 8, is the right to personal privacy. The Human Rights Act also provides that if any public authority, which includes the Secretary of State and any body performing functions of a public nature, were to breach the right to privacy, it would be liable to obligations, damages and other remedies under the Act. We do not have a written constitution which guarantees privacy; instead, we have the data protection legislation, which is broad-ranging, and the Human Rights Act.

The right to privacy requires three things. One is reasonable legal certainty where there is to be any invasion of privacy—one must know what it is for. The second is a legitimate aim—it must be done for a proper purpose. The third thing is that any invasion must satisfy the principle of proportionality—it must not be excessive. There is a lot of case law on this. Indeed, I was involved in one of the cases years ago in the Court of Appeal—called, I think, Source Informatics —which dealt with the lawfulness of supplying anonymised patient data.

I do not think it is sensible to add further language or further mechanisms over and above those that the Minister has described this afternoon. The more specific we become and the more we go on adding, the more ambiguities we create over what the additional words mean and how they might be interpreted. My view is that it is much better to use the Human Rights Act, the data protection legislation and the specific safeguards that the Minister has adumbrated very clearly today. In my view, they completely satisfy the right to patients’ personal privacy and I cannot think that adding these other words will add to public confidence. It seems to me that public confidence depends more on leadership and public information based upon the framework that we have.

Therefore, I hope that we do not divide the House on this. I hope that we are all able to agree that confidentiality and privacy are vital, as is public confidence, but that we should not overlegislate and overprescribe. In particular, we should not do so when we are considering Commons amendments at the 11th and a half hour before midnight, and we may later come to regret anything that we now add which creates further problems and further ambiguities.

Baroness Brinton: I agree with the last comments of the noble Lords, Lord Lester and Lord Ribeiro. One of the problems that your Lordships’ House has faced with this is the issue of data used for research versus data used for commercial purposes. That becomes a very grey area when some commercial firms are doing pure research. It may be worth your Lordships’ House remembering that even commercial research, whether it is carried out by research departments or within universities and other research bodies, is bound by the strongest ethical codes in which we should all have trust and assurance because they are respected around

7 May 2014 : Column 1523

the world. I would be grateful if the Minister could confirm again—I know he has already done so—that commercial data will not be released so that, for example, an insurance company could raise premiums for a particular group of patients. That is the fear that the public have, rather than the issue of using research data, for which we already have many structures and for which the Health Research Authority is properly the correct authority to make sure that the codes are followed absolutely. There is a difficulty in that pseudonymised and anonymised data can sometimes be undone, but that issue already exists in other research areas and there are plenty of mechanisms to hold researchers to account should they use any of that information themselves. I support the point of the noble Lord, Lord Lester, that we should be content with the Government and that if we start to overprescribe, we will end up unravelling some of the complex but effective arrangements that already exist in the research world.

Secondly and very briefly, I have previously raised with the Minister one very specific point on this issue, and I have asked him this question in writing in advance. Has there been any progress on the timetable for inclusion of primary care musculoskeletal data into the care.data programme? I understand that it was an unintentional omission earlier in the process but, given the number of people in this country suffering from musculoskeletal problems, it would be quite extraordinary if they were not included at an early stage.

The Earl of Erroll (CB): My Lords, I would just like to say a few words about this because I am very involved in the whole world of IT, personal data and identification and the issues around examining the data. One of the things that has become apparent to me is that if care.data is to be effective, public trust must be maintained in it—that is the core problem. It needs to be there so that we can do epidemiological studies, and to do those some information will have to be in the database—such as postcodes, so that you can look for clusters and so on—which will potentially allow people to be identified. Once you compare it and link it across to other databases, if you are looking for someone who is of a certain age, a certain health profile and in a certain area down to 100 yards, it is fairly easy to start working out who they are by cross-linking. However, it may be important to take that risk from time to time, as long as it is done properly. What we do not want if this is to work is for people to feel a need to opt out. You cannot do epidemiological studies if half the population decide they are going to opt out. It is essential that the public trust the database, trust that they will be protected as far as possible and trust that the information will not be misused against them. That is the core to getting this whole thing to work, and if you fail on that you have had it.

The noble Lord, Lord Lester, made a very good point about the human rights stuff being in there and that we have the Data Protection Act and all these things. The Minister also mentioned the Data Protection Act. However, there are some challenges with this. One of them is how you bring a case under the Human

7 May 2014 : Column 1524

Rights Act when a department or the health service is acting incorrectly. It is quite tricky; it does not happen overnight and you would be lucky to stop it. There are wonderful protections in the Data Protection Act but there is a certain amount of vagueness about exactly where the limits are and, worse still, it will all be changed this autumn or winter when the new European Parliament assembles. The proposals nearly got through before the coming elections. Under the digital single market agenda, a new Data Protection Act regulation will almost certainly come out of Europe somewhere towards the end of the year. That will have direct action in this country. We have no control over it as it is a European law that is directly effective in this country, and the Information Commissioner over here will be the person who will enforce it. We will have no say in whether it relaxes things too far or becomes too prescriptive in what it does. We cannot rely on it for certainty in the future

Lord Lester of Herne Hill: The noble Earl may not be aware that nothing that comes from Brussels will be able to offend the European Convention on Human Rights or the charter of rights with regard to EU action.

The Earl of Erroll: I fully agree with the noble Lord. My challenge with it is how easy it will be to raise a human rights case if we find that the regulation does not comply with something on which we have legislated here and there is a conflict. I accept that it is theoretically possible. I would argue that maybe the way proposed by the noble Lord, Lord Owen, is another way of trying to make sure that we do not have to go to that step.

Briefly, there are some commercial issues with this. One of the changes is that the National Health Service may end up giving away data that are all good for research purposes but which would be very useful for pharmaceutical development and stuff like that. Companies will make a lot of money from information that they get from the data, but I would like to see the NHS benefit. I do not have a problem with it selling the correct data if it is properly controlled for the right research purposes. There will also be some businesses and companies that will make a business out of analysing such data and selling the analysis back to the NHS. It would be useful because the NHS does not have the time or the skill to do that work, but the NHS should benefit from the work and effectively charge for the data that it sells.

There are two reasons why I like the amendment of the noble Lord, Lord Owen. On the Minister’s interpretation of statistics, if we take the more general wording, “the promotion of health”, and it is possible for the food industry to use it to bolster some of their stuff, we have to look at some of the underlying assumptions of the statistics, which can be dangerous things. We need to see how that is done. Even if we go for the newer wording in Amendment 40C, there could be problems in this area. I do not think that anybody is capable of regulating themselves. We always have our own internal biases towards our own objectives and can be regulated only by someone who is looking at it from another point of view, from outside.

7 May 2014 : Column 1525

We have had the Caldicott guardians for a while. The system works as they are looking after the public interest. They give the public confidence that things are not being misused in their names. Therefore, why are we throwing away a few years of experience of something that works? It is not tampering with the wording of the Bill or playing around with a mish-mash of words; it is merely re-establishing something that already exists. It is a sensible balance. If you cannot check yourself, checks outside the organisation have to exist. Therefore, I suggest that we support the amendment.

Baroness ONeill of Bengarve (CB): My Lords, I hope that the Minister will comment on a fact mentioned by the noble Earl, Lord Erroll: namely, that on its imminent coming into force the European data protection regulation will indeed supersede our Data Protection Act, which implements the current European directive. I am sure that the debate in Brussels has been conducted with the highest aims for the protection of privacy but I also believe that it is based on considerable illusions. It aims to introduce reliance on specific and explicit consent for each and every reuse of lawfully held data. This is an illusory standard. In the commercial world it works as we can tick and click as giving consent to terms and conditions, but it does not provide an adequate model for the world of medical research. I fear that when this draft regulation comes through, which it is very likely to do, we will not have secured better standards for the protection of patient privacy in research, and nor will we have secured the future of medical research.

This seems to me to be a very poor moment at which to have to make decisions on protecting the privacy of patient data, because the ground rules are about to change. They will of course be compatible with an interpretation of the European Convention, but they will change a great deal. I declare an interest as chair of the ethics, regulation and public involvement committee of the Medical Research Council, and as chair of the Equality and Human Rights Commission.

6.15 pm

Earl Howe: My Lords, this has been a very fruitful and excellent debate. I thank all noble Lords for their contributions. Before I address the amendments in the names of the noble Lords, Lord Hunt, Lord Turnberg and Lord Owen, I hope it will be thought to be in order for me to cover some of the questions that have been raised by noble Lords.

I start with the issues raised by the noble Lord, Lord Patel, who asked me a series of questions. First, he asked about the “one strike and you’re out” intention to which I referred. We believe that this will be a criterion that the Confidentiality Advisory Group, the CAG, will take into account in its advice to the HSCIC on the dissemination of data that might be used to identify an individual, so there is already scope for flexibility and common sense within this provision. We anticipate that the transparency of the information centre’s decisions to release data, which is provided for in the 2012 Act, would provide further safeguards and reassurances that a “one strike and you’re out” rule

7 May 2014 : Column 1526

was being used appropriately—so there is flexibility. This is one matter on which NHS England in particular will want assurance as the engagement exercise proceeds, as will Ministers.

The noble Lord asked about accredited safe havens. I can commit that the Government will consult on proposals to introduce regulations before bringing forward any new regulations that would enable greater access to data for commissioning purposes, for example through accredited safe havens. As affirmative regulations, any such changes would be subject to debate in both Houses. Will personal identifiers be excluded from the collection? The information centre will of course need identifiers in order to be able to link health and care data from different settings. That is vital if it is to become the source of linked data that all sides seem to desire. Of course, this would be with the protections set out in the 2012 Act, to ensure that the information centre could release information that could be used to identify individual patients and service users only where there is a legal basis for it to do so.

The noble Lord, Lord Patel, also asked about effective links to the patient records standards board, to define the content of patient records. Following the department’s recent review of informatics governance arrangements, it has proposed a committee that will focus specifically on information standards: the so-called SCCI. That committee has oversight of the operational framework and supporting infrastructure to enable the appraisal and approval of information standards and collection across health and care systems in England. The committee will be the mechanism by which the patient records standards board will be able to engage with the delivery community and the wider system, in order to define and gain approval for the content of patient records.

The noble Lord, Lord Patel, suggested that there should be straightforward mechanisms for the personal opt-out. NHS England’s extension period and engagement processes do allow space and time for fuller listening, engagement and debate on that vital programme. As part of the process, I understand that a wide range of stakeholders—including the BMA, medConfidential, Macmillan and indeed the noble Lord, Lord Turnberg—are invited to regular advisory group meetings with the NHS England team. Those processes will be key to helping work through how best to provide reassurance and trust in the care.data programme, not least on how best to ensure that the opt-out process will work in practice and can be clearly communicated and understood by both GPs and patients.

The noble Lord asked whether I would assure the House that no changes to the law would be made to provide for access by commissioners to this kind of data without consultation. I can give that assurance. I can commit that we will consult on proposals to introduce regulations, as I have already mentioned.

The noble Lord asked whether I could say anything about secure data labs or fume boxes for handling data. Yes, I can say a little. I understand that the information centre is working to see how best it can implement this kind of technology. It is tremendously encouraging and could offer real potential benefit from the wealth of information held by the information centre without putting people’s confidentiality at risk. That is the potential benefit.

7 May 2014 : Column 1527

My noble friend Lady Brinton asked about the extraction of musculoskeletal data from GP records. I understand that NHS England and the information centre are working to ensure that musculoskeletal data will be included in the GP extraction.

The noble Lord, Lord Hunt, suggested that patients should not have to go to their GP to opt out—a point that he has made to me on more than one occasion in the past. This is mostly a matter for NHS England, but GPs, as data controllers, have legal responsibilities under the Data Protection Act for ensuring that all patients are aware of how their information is being used and shared. That does not relate just to care.data but to any use of data for wider purposes. They also have professional and moral objectives to ensure that their patients are informed about the use of their data.

Lord Hunt of Kings Heath: I do not want to delay the House and I am grateful to the noble Earl, but he will know that there is a widespread concern about the quality of GP practices in some parts of the country. The first report of the chief inspector of primary care within CQC contained some hair-raising concerns. The idea that one of those GPs will be responsible for protecting data in those circumstances fills me with gloom and despair. Clearly, something will go wrong. If this ever gets off the ground, which I doubt in current circumstances, something will go wrong and the whole thing will collapse again.

Earl Howe: At the same time, if anyone is going to come up with a better solution, now is the time. I have not heard one. In all seriousness, however, all GPs are well aware of the duty of patient confidentiality. I have never met a GP who has not been aware of that and conscientious about it.

The noble Earl, Lord Erroll, took us to the subject of the proposed European general data protection regulation, which is of considerable concern to the Government. We believe that clinical research is already highly regulated in the UK, so that the interests of privacy are effectively balanced against the value to the public that the research will deliver. The data protection proposals will, as I am sure he is aware, be subject to the co-decision of the European Parliament, the Council of the European Union and the 28 member states. Officials from the Department of Health are working closely with the Ministry of Justice, which leads on the negotiations with the EU on the UK's behalf, ensuring that stakeholders are engaged on key issues such as consent, the use of pseudonymised data, and when the legitimate interests of data controllers can be applied in order to process personal data.

We have also flagged up our concerns with MEPs on specific issues, including the narrowing of the exemption from consent generally and in relation to a rigid reliance on consent or pseudonymous data in order to process data. We strongly agree that we need to take a very firm position on research within the Council and are resisting all changes that would make the use of health data for research more problematic.

I turn now to the amendments themselves. In doing so, I not only thank the noble Lords who spoke to them, but particularly thank my noble friends Lord Lester,

7 May 2014 : Column 1528

Lord Ribeiro and Lady Brinton for their supportive comments about the Government’s amendments and the Government’s position generally.

Amendments 45E and 45F would place Dame Fiona Caldicott’s independent advisory panel on information governance on a statutory footing to provide advice on information governance across the health and care system. It would require the Secretary of State and NHS England to have regard to its advice when making directions to the Health and Social Care Information Centre under Section 254(1) of the 2012 Act. The Secretary of State would also be required to have regard to its advice when making regulations to establish an accreditation scheme for private sector information providers. The amendment would also revoke directions made to the information centre by NHS England in 2013 to implement the care.data programme and to establish data services for commissioners.

Let me say immediately that we are sympathetic to the desire to see the oversight panel placed on a statutory footing. In an area as complex and important as information governance, it is essential that we have a source of clear, authoritative advice, available to all parts of the health and care system, which creates the right conditions for informed judgments to be made on the use of information, and on decisions to share or not to share. When the Secretary of State asked Dame Fiona Caldicott to chair the Independent Information Governance Oversight Panel, it was in recognition of her extensive knowledge and experience in this area. I agree with the noble Lord, Lord Turnberg, that Dame Fiona is uniquely well placed to lead the panel in providing strong, visible leadership to the health and care sector. It is our clear intention that the panel be best supported to do this. My department continues to work closely with Dame Fiona to ensure that the panel is equipped to deliver the role it has been charged with performing.

There may well be merit in establishing the panel in law and giving legal force to its advice on data sharing. I strongly feel, however, that on this important matter, so crucial to people’s privacy and confidentiality, to the safe and efficient operation of the health and care system, and to the research agenda, it is vital that we ensure the system of oversight, scrutiny and advice is robust and coherent. I undertake that we will explore with Dame Fiona Caldicott and all interested parties how best to achieve this, which may include using existing legal powers to establish an independent committee able to advise on data-sharing matters. Dame Fiona Caldicott has confirmed that she would explore options on existing legal powers to establish an independent committee and has noted the importance of considering further and clarifying the functions of the panel before doing so. I hope that those statements, as far as they go—and they are intended to be helpful—will reassure the noble Lord, Lord Owen, and other noble Lords.

I turn now to the directions made to the HSCIC by NHS England in 2013, covering the establishment of data services for commissioners and the implementation of the care.data programme, which would be revoked by this amendment. These directions, inter alia, describe the intended operation of the patient opt-out processes in the event that a patient objects to his or her information

7 May 2014 : Column 1529

being shared. A key focus of NHS England’s engagement activity is to ensure that the opt-out process is implemented in a way that reflects the outcome of the listening exercise, and this will need to be reflected in the new directions to the HSCIC. As there will be new directions, it is not necessary and would be inappropriate to use primary legislation to revoke the current directions.

With those assurances and with a commitment to ensure that the oversight panel is supported to deliver its objectives—including a commitment to explore using existing legal powers to establish an independent committee to advise on data sharing—I hope that the noble Lord will see fit to withdraw his amendment.

It may be helpful to address Amendments 45C and 45D together as they cover very similar ground and, I believe, have similar intent. Amendment 45C would narrow the purposes for which the information centre may disseminate anonymised and certain other information under its general dissemination power. Government Amendment 45 provides that the information centre may disseminate information under its general dissemination power only for the purposes of the provision of health care or adult social care, or for the promotion of health. This amendment would replace the latter of these purposes with “biomedical and health research”, with the effect of curtailing dissemination for any other health promotion purpose. Amendment 45D seeks to define the health promotion purposes for which the HSCIC may share anonymised and certain other information under its general dissemination power in regulations.

I understand the concerns raised by some noble Lords that government Amendment 45 would allow commercial companies—including fast food and tobacco companies, for example—to access information under this provision for commercial gain. I hope I can offer reassurance that the scope of this provision will enable us to tap the potential of the wealth of data available for research, while explicitly preventing the use of such data for purposes that will not promote health.

6.30 pm

However, let me be clear, especially to my noble friend Lady Brinton, that the permitted purposes for general dissemination of anonymised and certain other information, as defined by government Amendment 45, would not allow information to be shared for purposes that have no provision of healthcare or adult social care or health promotion aspect, such as to enable insurance companies to raise their premiums.

Defining the purposes for which the information centre may share anonymised and certain other information in this way means that government Amendment 45 will support the sharing of information for a broad range of valuable health or adult social care research, and for wider public health purposes. While this would permit the sharing of data with commercial organisations—I think there is a recognition that that is something that we should continue to do—information would be shared only if it were for genuine provision of health or adult social care or health promotion purposes, and not for purposes with no such aspect. For the avoidance of doubt, this is further underpinned by government Amendment 45,

7 May 2014 : Column 1530

which would impose a new duty on the information centre to respect and promote the privacy of people receiving health and adult social care services in England in everything it does.

In contrast, Amendment 45C would prevent the information centre sharing information for an array of desirable and valuable purposes; for example, such a definition would not permit dissemination for the purposes of informing planning decisions, in order to avoid a potentially negative impact of environmental factors on the health of communities affected by a planning decision, including town planning and the provision of green spaces. I reassure the noble Lord, Lord Turnberg, that all biomedical and epidemiological research would be covered by the promotion of health definition. Therefore, I can confirm that, as drafted, the government amendment does not do what I think the noble Lord fears that it does: it does not omit biomedical and health research.

If we are to benefit fully from the wealth of health and social care data available in England, it is essential that we do not inadvertently shut off dissemination for the many laudable purposes that do not fall within the more narrow bounds proposed in the noble Lord’s amendment. The law is already clear that the information centre may not release data that could be used to identify an individual, other than a provider, without a legal basis to do so, and amendments made in the other place would make the information centre’s publication or other dissemination of any information that could be used to identify an individual subject to external, independent statutory advice by the Confidentiality Advisory Group.

I think the only question that I have not addressed is that from the noble Lord, Lord Hunt of Kings Heath, about the timetable for the implementation of the care.data programme. I think I am right in saying that the new NHS chief executive Simon Stevens has said that care.data should go ahead when it is ready and that need not mean six months; it could well be longer.

With those assurances, I hope that the noble Lord will feel able to withdraw his Amendment 45C.

Lord Turnberg: My Lords, I was rather encouraged by the noble Earl’s initial remarks about strengthening Dame Fiona Caldicott’s committee and making clearer what role it might be able to play.

The problem I wanted to address in Amendment 45C is the uncertainty in the ways in which the words “promotion of health” may be interpreted. I know that the noble Earl has said that they cover research, for example. What about research that does not immediately seem to promote health? It is this rather vague term that I wanted to clarify. It is not about trying to unravel the legislation, as someone has suggested. It is about making it absolutely clear. I am afraid I was not very convinced by the noble Earl, and I beg leave to ask for the opinion of the House.

6.35 pm

Division on Amendment 45C

Contents 169; Not-Contents 293.

Amendment 45C disagreed.

7 May 2014 : Column 1531

Division No.  1

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Bhattacharyya, L.

Billingham, B.

Blackstone, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Campbell-Savours, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Drayson, L.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Evans of Watford, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Ford, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kestenbaum, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

McAvoy, L.

McConnell of Glenscorrodale, L.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Massey of Darwen, B.

Maxton, L.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Handsworth, L.

Noon, L.

Nye, B.

O'Neill of Clackmannan, L.

Owen, L.

Patel of Blackburn, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Puttnam, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Robertson of Port Ellen, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

7 May 2014 : Column 1532

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tonge, B.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Wills, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

NOT CONTENTS

Aberdare, L.

Addington, L.

Adebowale, L.

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Allenby of Megiddo, V.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor, V.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Best, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Boothroyd, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Burnett, L.

Buscombe, B.

Butler-Sloss, B.

Byford, B.

Caithness, E.

Campbell of Surbiton, B.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chalker of Wallasey, B.

Clement-Jones, L.

Colville of Culross, V.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Coussins, B.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

Dannatt, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Elton, L.

Empey, L.

Erroll, E.

Falkner of Margravine, B.

Faulks, L.

Fellowes, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Finlay of Llandaff, B.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glendonbrook, L.

Glentoran, L.

Gold, L.

Goodhart, L.

Goodlad, L.

Goschen, V.

Green of Hurstpierpoint, L.

Greengross, B.

Grender, B.

Grey-Thompson, B.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Hope of Craighead, L.

Horam, L.

Howarth of Breckland, B.

Howe, E.

Howe of Idlicote, B.

Howell of Guildford, L.

Humphreys, B.

7 May 2014 : Column 1533

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

James of Blackheath, L.

James of Holland Park, B.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

Kilclooney, L.

King of Bridgwater, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Listowel, E.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luce, L.

Luke, L.

Lyell, L.

Lytton, E.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Mackay of Drumadoon, L.

MacLaurin of Knebworth, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Manzoor, B.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Martin of Springburn, L.

Masham of Ilton, B.

Mawhinney, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Morrow, L.

Moynihan, L.

Murphy, B.

Nash, L.

Neuberger, B.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer, L.

Palmer of Childs Hill, L.

Palumbo, L.

Pannick, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Quirk, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Roper, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

St John of Bletso, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Sutherland of Houndwood, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Tenby, V.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Trumpington, B.

Tugendhat, L.

Turnbull, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Vallance of Tummel, L.

7 May 2014 : Column 1534

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Young of Hornsey, B.

Younger of Leckie, V.

6.50 pm

Amendment 45D not moved.

Amendment 45E (as an amendment to the Motion)

Moved by Lord Owen

As an amendment to the Motion that this House do agree with the Commons in their Amendment 45, at end insert “and do propose Amendment 45F as a consequential amendment”.

45F: After Clause 118, insert the following new Clause—

“The Oversight Panel

(1) There shall be a body corporate to be known as the Independent Information Governance Oversight Panel for Health and Social Care (referred to in this section as “the Oversight Panel”).

(2) The main duty of the Oversight Panel shall be to provide independent advice on all matters relating to the processing of relevant information in relation to health and adult social care.

(3) In exercising its main duty, the Oversight Panel shall—

(a) provide advice and make recommendations and proposals on such processing to the Secretary of State, and report annually; and

(b) provide advice on such processing to any other person in relation to health and adult social care.

(4) Any person or body who is advised by the Oversight Panel pursuant to this section shall have regard to that advice.

(5) The Secretary of State and the Board (“NHS England”) when making directions under section 254(1), and regulations under section 267, must seek and have regard to the advice of the Oversight Panel.

(6) The Secretary of State or, as the case may be, NHS England must lay before Parliament a response to the advice given by the Oversight Panel under subsection (5).

(7) The Secretary of State may by regulations make provision about the Oversight Panel relating, in particular, to appointment of the chair and other members, terms of appointment, establishment and membership of committees or sub-committees, its proceedings and payment of remuneration, allowances and expenses.

(8) The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Collection and Analysis of Primary Care Data) Directions 2013 and The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Data Services for Commissioners) Directions 2013 are revoked.”

Lord Owen: My Lords, for those who have not been in the debate I will try to deal with the specific responses from the different speakers. First, perhaps I may deal with the response from the noble Lord, Lord Lester. I agree very much with what he said. I believe that the European Court of Human Rights and the human rights legislation, coupled with the privacy Act, do enough to safeguard confidentiality and privacy. With respect, however, that is not what this amendment is essentially about. This amendment is essentially about

7 May 2014 : Column 1535

how you release those documents, what the procedures and mechanisms are, and what the criteria are for release. That is what is so very sensitive at the moment. That is why we need the reassurance of outside scrutiny not only over NHS England, which is effectively a quango, but also over a matter as sensitive as the regulations that might come from the Secretary of State.

In his speech, the noble Earl, Lord Erroll, reminded us of the complexity of this issue. In fact, the issue is geared into a lot of the technology and science of how one collects this information. As for the noble Baroness, Lady Campbell, she warned us seriously about what is likely to come out of Europe, which could have profound aspects. I believe that legislation is coming. However, the key issue is what the noble Earl, Lord Howe, said in his speech. With his characteristic courtesy, he had already given me an indication of how he was likely to reply. Those who were present earlier will remember that I did not try to summarise his views; I thought it was more important that the House should listen to them. I listened as carefully as I could, and I do not want to be churlish about this—what he said was important and will give some comfort to people outside. He said that he was sympathetic to the desire to put an oversight panel on a statutory basis and I very much welcome that. He also referred to how Dame Fiona Caldicott was uniquely well placed to be the chairman of this body and, by implication, a new statutory body. I think that all the contributions from both sides have agreed on that issue.

The noble Earl said that there may well be merit in establishing the existing panel and went on to say that in his conversations with Dame Fiona, she said that she would look first at the question of statutory underpinning and then at it in terms of the relationship. The problem, as I explained to the noble Earl this morning, is that I should like to have a letter from the Secretary of State committing himself to that. Those of us who have been in government know that the time of the legislative committee is very much fought over: everybody wants to legislate but time is short. An unequivocal commitment to legislate would be necessary for me to withdraw this amendment, but, with respect, we did not get one. We got a lot of sympathy, and I hope and believe that legislation will come. I even hoped that the noble Earl would say, “The Government will be neutral. We are not taking a position. Let it go to the Commons and let’s see what the Commons view is”. I think that that would be helpful and would give him more time to build a consensus around the pattern and form of legislation.

If the House does not mind, I would like to ask for its agreement to this amendment—in the spirit that I believe that it would do a lot to ease the current suspicion and distrust over the whole issue of medical data, patient data and hospital data. I say to those who did not hear the speeches that no one in this entire debate has questioned the absolute importance of these data: they could be crucial for this country’s future in the biological sciences and in pharmaceutical research. If the issue is handled properly and with confidence, I believe that we can ensure that the number of those opting out—which is a natural right—will be very small. As long as the number of those opting out

7 May 2014 : Column 1536

remains small then the data will be statistically significant and extremely important. The danger is that the number of those opting out could become quite substantial. I hope and pray that that does not happen. In our vote tonight, we will at least be showing those who are concerned that we believe that there should be a statutory underpinning. I beg to move.

6.56 pm

Division on Amendment 45E

Contents 165; Not-Contents 259.

Amendment 45E disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Billingham, B.

Blackstone, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Campbell-Savours, L.

Chandos, V.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Coventry, Bp.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Donaghy, B.

Drake, B.

Drayson, L.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Watford, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Joffe, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kestenbaum, L.

Kilclooney, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

McAvoy, L.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Handsworth, L.

Morris of Yardley, B.

7 May 2014 : Column 1537

Morrow, L.

Nye, B.

O'Neill of Clackmannan, L.

Owen, L.

Patel of Blackburn, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Puttnam, L.

Quin, B.

Quirk, L.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Robertson of Port Ellen, L.

Rooker, L.

Rosser, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Williams of Baglan, L.

Wills, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Young of Norwood Green, L.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Allenby of Megiddo, V.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor, V.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Best, L.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Boothroyd, B.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Burnett, L.

Buscombe, B.

Butler-Sloss, B.

Byford, B.

Caithness, E.

Campbell of Surbiton, B.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Colville of Culross, V.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Coussins, B.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Finlay of Llandaff, B.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glendonbrook, L.

Gold, L.

7 May 2014 : Column 1538

Goodhart, L.

Goodlad, L.

Green of Hurstpierpoint, L.

Greengross, B.

Grender, B.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Horam, L.

Howarth of Breckland, B.

Howe, E.

Howe of Idlicote, B.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

James of Blackheath, L.

James of Holland Park, B.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

King of Bridgwater, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lingfield, L.

Liverpool, E.

Livingston of Parkhead, L.

Lucas, L.

Luke, L.

Lyell, L.

Lytton, E.

Mackay of Clashfern, L.

Mackay of Drumadoon, L.

MacLaurin of Knebworth, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Manzoor, B.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Martin of Springburn, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer, L.

Palumbo, L.

Pannick, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

St John of Bletso, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Sutherland of Houndwood, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Tenby, V.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tope, L.

Trenchard, V.

Trimble, L.

True, L.

Trumpington, B.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

7 May 2014 : Column 1539

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Wasserman, L.

Watson of Richmond, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

Motion on Amendment 45 agreed.


7.09 pm

Amendment 46A (Motion on Amendment 46)

Moved by Earl Howe

That this House do disagree with the Commons in their Amendment 46 but do propose Amendments 46B to 46E in lieu—

46: Clause 121, page 105, line 6, at end insert—

“(ia) regulations under section (Part 1 appeals) which include provision that amends or repeals a provision of an Act of Parliament.”

46B: Clause 121, page 105, line 6, at end insert—

“(ia) the first regulations under section (Part 1 appeals) (Part 1 appeals);

(ib) subsequent regulations under that section which include provision that amends or repeals a provision of an Act of Parliament, or provides for a provision of an Act of Parliament to apply with modifications;”

46C: Clause 121, page 104, line 41, after “Parliament” insert “, or provides for a provision of an Act of Parliament to apply with modifications”

46D: Clause 121, page 105, line 11, after “Parliament” insert “, or provides for a provision of an Act of Parliament to apply with modifications”

46E: Clause 121, page 104, line 41, after “Parliament” insert “, or provides for a provision of an Act of Parliament to apply with modifications”

Motion agreed.

Motion on Amendments 47 to 51

Moved by Earl Howe

That this House do agree with the Commons in their Amendments 47 to 51.

47: Clause 123, page 105, line 13, at end insert—

Subsection (4) does not apply to a statutory instrument which contains regulations or an order within paragraph (e), (ib) or (l) of that subsection, if the regulations or order are within the paragraph in question only because they include provision that applies an Act of Parliament with modifications for the purpose of making saving, transitional or transitory provision.”

48: Clause 125, page 107, line 6, leave out subsection (2)

49: Schedule 7, page 141, line 34, at end insert—

to the Health and Social Care Information Centre in connection with—

(i) the exercise by the Centre of functions conferred in regulations under section 251 of the National Health Service Act 2006 (processing of patient information for medical purposes);

(ii) any publication or other dissemination by the Centre of information which is in a form which identifies an individual to whom the information relates or enables the identity of such an individual to be ascertained.”

50: Schedule 7, page 142, line 4, at end insert—

7 May 2014 : Column 1540

“8A Regulations may provide for the committee appointed under paragraph 8(1) to be required, in giving advice, to have regard to specified factors or matters.”

51: Schedule 7, line 5, after “Authority;” insert “to make provision about integrating care and support with health services;”

Motion agreed.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Motion of Regret

7.09 pm

Moved by Lord Pannick

That this House regrets that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 make the duty of the Lord Chancellor to provide legal aid in judicial review cases dependent on the court granting permission to proceed (SI 2014/ 607).

Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee

Lord Pannick (CB): My Lords, over the past 40 years politicians of all Governments have complained when they lost judicial reviews. However, when they calmed down they recognised that the principles created by the courts in this area of the law are,

“fundamental features of a constitutional democracy”.

I quote from De Smith’s Judicial Review, edited by the noble and learned Lord, Lord Woolf, Professor Jowell, and others. Lord Chancellors of the stature of the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, saw it as part of their responsibility to remind their ministerial colleagues of the importance and the political neutrality of judicial review. They understood that Ministers may be irritated by these cases while in government, but they welcome such controls when they lose power and move into opposition. The Lord Chancellor in this Administration, Chris Grayling, is by contrast a politician with a short-term mission. He wrote in the Telegraph last month that he is determined to prevent,

“judicial reviews, instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.

The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat. Legal aid is paid to a claimant’s lawyers only if the claimant satisfies a means test and shows that the claim has legal merit. Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. The Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration.

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The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.

These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low—scandalously low—rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation. Nor is it any solace that the Lord Chancellor has discretion to make a payment; that applies only if the judicial review application is not dismissed and some of these applications will be dismissed because the case is now moot. In any event, nobody can proceed on the basis of a hope that the Lord Chancellor, in his discretion, may choose to make a payment. We have all seen recently that the discretionary “exceptional circumstances” category of funding for legal aid applies in theory but rarely, if ever, in practice.

7.15 pm

The senior judiciary responded to the Lord Chancellor’s consultation on this matter and criticised the proposal that is now enacted in these regulations. It was concerned by what it described, rightly, as the “chilling effect” and judiciously advised that there was another much more fair and effective means of addressing any problem. The solution is that the court should be able to certify that legal aid should be refused if, in the opinion of the judge, the application for judicial review is totally without merit.

These regulations have the dubious distinction of being criticised by two parliamentary committees. Your Lordships’ Secondary Legislation Scrutiny Committee, in its 37th report, dated 27 March, drew the attention of the House specifically to these regulations. The committee was very critical of the uncertainty that the regulations will create regarding the criteria for payment and also of the inability of the Ministry of Justice to say how many cases a year are likely to be affected by the changes. The Joint Committee on Human Rights, in its 13th report, dated 30April, concluded that the changes made by these regulations are not justified by the evidence. The Joint Committee added that, in the light of the significance of the restriction on rights of access to the courts, these changes should have been brought forward in primary legislation.

Noble Lords who took part in the debates during the passage of Legal Aid, Sentencing and Punishment of Offenders Act 2012—and there are many in the House tonight—will recall the repeated assurances

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that Ministers gave that the reduction in the scope of legal aid imposed by that legislation did not affect judicial review. It is ironic that the Lord Chancellor is now using the general powers conferred by that legislation to make regulations that, in practice, will severely restrict the availability of legal aid in judicial review cases. As the Joint Committee noted, there is a legislative vehicle that could and should have contained the changes made by these regulations. The Criminal Justice and Courts Bill currently before Parliament contains many significant proposals—many highly regrettable—about judicial review. Can the Minister please explain why the proposals in these regulations were not included in that Bill so that they could be properly scrutinised and, if appropriate, amended by this House and the other place?

I regret the content of these new regulations and I regret that this detrimental change to justice is being implemented by secondary legislation. I beg to move.

Lord Lester of Herne Hill (LD): My Lords, I am a member of the Joint Committee on Human Rights and we are very grateful to the noble Lord, Lord Pannick, for initiating this debate. Our report, to which he has referred, and his speech say everything that I think could be said to explain the firm hostility to these proposals not only across the legal profession but across the committees of both Houses and the wider public. This will not inhibit people from saying the same thing again but I do not intend to be one of those; instead, I want to say something slightly different.

One thing that the Joint Committee on Human Rights referred to as a result of what is happening is the,

“conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.

We expressed the view that,

“the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice”,

and so on.

During the passage of the Constitutional Reform Bill in 2005, I was one of those who supported the abolition of the old Lord Chancellor system and the creation of a new one in which a politician who was not a lawyer could become Lord Chancellor and Secretary of State for Justice. In my reforming enthusiasm, it seemed that that was a sensible thing to do. I deplored the conservatism of those who thought that this was ridiculous and that there was no reason why a non-lawyer—a lay person—could not be the Secretary of State for Justice.

I thought about my old boss Roy Jenkins, who was not a lawyer, and it seemed to me that he would have made an admirable Lord Chancellor because, although he was not a lawyer, he understood the rule of law. It was in his DNA—in his bloodstream. I could not imagine Lord Jenkins of Hillhead at any stage in his career becoming a populist Secretary of State for Justice who would forget about the importance of the independence of the judiciary, its role and the role of the independent legal profession, and the importance of judicial review. That was why, at that time, I supported the changes.

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I am sorry to say that the previous Lord Chancellor, the right honourable Jack Straw, and the present Lord Chancellor have made me reconsider whether my enthusiasm was sensible. The previous Lord Chancellor, although a barrister, had managed in his period of office to behave in a way that I thought no Lord Chancellor would in flouting the judgment of the European Court of Human Rights and in going to Strasbourg to remonstrate with the president of that court about overreach and intrusion into the sovereignty of Parliament and so on. I do not believe that Lord Havers, Lord Hailsham, the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, or any of the traditional Lord Chancellors would have behaved in that way. That shows that you can be a lawyer and still not understand the rule of law. I know that what I have just said may be controversial on the Labour Benches but that is my view, having served him as an unpaid adviser for some 18 fruitless months.

However, the present Lord Chancellor is in a class of his own, because he is entirely miscast as Lord Chancellor. He would be perfectly cast in “House of Cards”. He would be an ideal person in that sort of role because he is a very intelligent, extremely charming, very effective politician. However, I am sorry to say that having seen him give evidence to the Joint Committee and generally, and seeing what he says in newspapers, I do not think he understands the rule of law. I do not think that you have to be a lawyer to do that but it might help if you have been part of that tradition. His legacy, I am sorry to say, is going to be bleak. People will look back on this period and the coalition Government and they will say with all the high statements made by both parties to the coalition about the rule of law—and for that matter the Opposition as well—extreme damage has been done to it.

The best judges of judicial review and costs are the judges. The judges invented judicial review. It was the judges who from 1976 developed the rules about judicial review. No Government would have done that. The judges did it because they realised that they should no longer be more executive than the Executive and that they needed to call Ministers and public bodies to account. It is one of the great glories of my life’s experience to have seen the flowering of judicial review. The present Minister of Justice thinks that judicial review is being abused by a lot of left-wing mischievous troublemakers who are running free and should somehow be curtailed. There is no basis for that allegation in my experience. If there were, you could be jolly sure that the judges themselves would criticise applicants who abused the process in that way. The Minister then goes on to suggest that this kind of change in legal aid will diminish mischievous and vexatious applications for judicial review.

All I can say about that is the best safeguards of the process are the judges and in this country, unlike some places, you have to get permission from the court before you can apply for judicial review. That is not an easy step. It often takes a great deal of skill to draft an application for judicial review. Lawyers have to be persuaded to do so, especially if they are not going to be reasonably paid for their services. Again and again judges will criticise applicants, as they will respondents, if they feel that they are misusing the process. I do not

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think that it is the business of a Minister to interfere with the discretion of judges in controlling the judicial review that they have developed.

I do not know any case, and certainly the present Lord Chancellor has not pointed to a single case, in which judges have failed to do their job properly by curbing the misuse of judicial review. I do not know a single example. He cannot give any; the Joint Committee on Human Rights asked him about it, and he was not able to provide any. Therefore it is an assault on the rule of law in a fundamental sense. It is not only about access to justice or equality of arms—that is to say, ensuring that the citizen and the state are on equal terms when it comes to judicial review. It is also about a complete lack of confidence in the ability of the judiciary to do its job properly. As a loyal supporter of the coalition, I feel very depressed at having to say what I have just said, but I am afraid that I have to say it, and I hope that whoever wins the next election chooses a Lord Chancellor and Minister of Justice who understands, as our Attorney-General now understands, what the rule of law implies. For all of those reasons I thoroughly support everything that the noble Lord, Lord Pannick, has said.

7.30 pm

Lord Clinton-Davis (Lab): I support the Motion. I am deeply impressed by the noble Lord, Lord Pannick, and the whole House will be indebted to him and the noble Lord, Lord Lester. Together they have adduced a withering criticism of the notions, buttressed by the noble Lord, Lord Lester. The Government are entirely mistaken in what they intend to do. They are determined to whittle away the availability of legal aid. What they intend in this regard provides another example of what they have in mind. It may not be as significant as other measures but none the less it is important in its own right. The intention is condemned, as has been said, by the Bar Council, the Law Society and by lawyers who practise in the field, without exception. Even the noble Lord who will reply to the debate must be concerned about what the Government intend.

Lawyers do not earn in this field—they earn insignificant sums. They do it because the law intends that they should, and they abide by that intention. Moreover, legal aid may be denied after the lawyer has taken on the case. In other words, the court can decide after the event. I wonder whether that is fair. Is it just? Should it be done? Judicial review, as has been said, is an important remedy. It enables the court to determine whether the Executive have exceeded their powers in law. That should not be disregarded. Of course, this measure should not be viewed in isolation. The Government have already vent their opposition to judicial review as we know it, having decided that time limits that were previously prescribed should be curtailed, thereby enabling the Executive to restrict access to the courts. Is that right? Should it be tolerated for one moment?

In none of the recent situations have the Government given consideration to the impact of the changes that they seek to implement. Indeed, one would have thought that, having proper regard to the significance of access to justice, they would at least pause before embarking on further destructive changes. According to the

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Secondary Legislation Scrutiny Committee, to which reference has already been made, the Government’s intent is to procure savings that they estimate as some £1.3 million from the legal aid budget. The committee believes that, in fact, these costs will simply transfer costs to another area. Indeed, that is already happening. Clearly, what should be considered is the entirety of the Government’s expenditure. There should be a proper, measurable analysis of either the savings to be incurred or the benefits intended as far as the public is concerned. Neither has happened, and the lacuna is absolutely woeful.

The Government argue that their changes will result in 69% of legal aid being removed. Is that not extremely worrying? Are the Government not concerned about this? Is the Minister, who is himself a lawyer, also unconcerned? Why should the availability of legal aid be decided on a discretion which is exercised after the event? If in fact only a few cases each year—the estimate is some 751 cases—would result in legal aid being removed, why bother? Why should lawyers representing extremely vulnerable people be victimised? Why should they have to wait, as the Government propose, until later? Where else in law is anything like this proposed? In my view this represents a backward step, and the Government should be thoroughly ashamed of introducing it.

Baroness Butler-Sloss (CB): My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

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The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

Lord Carlile of Berriew (LD): I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

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In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.

7.45 pm

The “wholly without merit” test is not a test of whether a case has fallen on one side or the other of the balance. Every lawyer in this House—even the very distinguished lawyers who preceded me—has made incorrect calls in cases. We all lose cases. That is one of the reasons we are there. However, what we need to deal with are not those cases where the lawyer makes the wrong call, but the cases where the lawyer and the litigant should never have made the call at all.

I should tell your Lordships that there is something called the judicial templates, which are amended—very helpfully—on a regular basis, and form part of what is called the Administrative Court Digest. Judges are not bound to use the templates—but they are there to be helpful and they are in electronic form, so they are often used. In the templates, there is a reminder to judges that they may certify that a case is “wholly without merit”. In other words, judges know that this is an important test and already they know that it has consequences, irrespective of legal aid. For example, if a judge certifies an immigration case as being “wholly without merit”, it means now, as a result of some changes that have taken place, that the applicant cannot renew his or her application orally before the full court. It means, in many cases, that they are put on an

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aircraft to a place they do not wish to visit, within a day or two. So the “wholly without merit” test already has consequences and is well understood by the judge. I suggest to my noble friend the Minister that that is the practical and sensible way of dealing with a problem that is correctly perceived and requires a solution.

In addition, there are cases that at first seem meritless and which, under these regulations, would not find their way to the Administrative Court because lawyers would not take them on. However, one of the challenges to somebody who is going through that trolley load of 12 sets of files is spotting the case in which something really has gone wrong. Often it is spotted as the result of excellent legal argument, but in many cases, it is not because the legal argument is good—often the argument is actually rather poor—but because the judge has the relevant experience and compares that case with other cases that he or she has seen over the years. If those cases are not allowed to filter through with permission to apply for judicial review, great injustice will be done.

As I thought about today’s debate, I reflected on something else. The last time I dealt with paper applications in the Administrative Court, in the course of a week I dealt with at least four cases in which the Home Office had failed even to reply to correspondence from the claimant. Now, I have every sympathy for the volume problem that Home Office lawyers and the Treasury Solicitor face. Nevertheless, it is a fact that if answers are not given to what are often legitimate questions, the individual concerned might not be able to get a job because of their immigration status; they might not be able to study or continue to study because of their immigration status; and they may not be able even to remain within the country.

In the cases I am referring to—they are but examples, I am afraid—the only way the individual was able to obtain a response from the Home Office was by bringing a claim for judicial review. It should not be so but I am afraid that it is a fact; it is unequivocally so and I have seen it in the past three months on the occasions to which I referred.

Furthermore, in a number of cases, especially those kinds of cases, what happens in the end is that the Treasury Solicitor reaches an agreement with the claimant’s lawyers that the claim should be withdrawn so that the case can be revisited and a fresh decision made; in other words, a claim for judicial review can lead not only to a response being obtained from the Home Office or another government department but to a just resolution of the action and of the interests of the individual. I am afraid that some of those cases will be excluded if these regulations continue in their present form.

On practical grounds, I suggest to the Minister that appropriate savings to the legal aid budget could be effected by using the “wholly without merit” test, and that, if we adopted that approach as compared with the regulations, we would have a solution that would be fair and judicious—and, of course, would have the advantage of being judicial, too.

Baroness Campbell of Surbiton (CB): My Lords, I support the Motion of Regret tabled by the noble Lord, Lord Pannick. I congratulate him on securing

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this debate on a subject of such fundamental importance. I will leave the legal arguments to the noble Lords who understand them. I want to focus on the impact of these regulations on the more vulnerable in our society.

The Lord Chancellor acknowledges that judicial review is an important tool, yet he has railed against its use by campaigners, declaring, in an article in the Daily Mail last September:

“While charities inundate Westminster with campaign material, they also target the legal system as a way of trying to get their policies accepted. One essential part of the campaigner’s armoury is the judicial review, through which it is possible for them to challenge decisions of government and public bodies in the courts”.

Only three months ago the slight was repeated in the Government’s response to their proposals for further reform of judicial review, which said that,

“too often cases are pursued as a campaigning tool”.

Let me declare an interest: I have been a campaigner all my life and I am fiercely proud of it. I believe that my efforts have enabled disabled people to gain their rights to dignity and equality, which for so long had been denied them. I think all of your Lordships would celebrate this. Where would we be without campaigns to right injustices? To take only one example, where would we be without the crusading spirit of the noble Baroness, Lady Lawrence?

What lies behind many of the highest-profile campaigns? It is injustice. No matter how many times the Lord Chancellor repeats himself, judicial review is not about campaigning; it is about people standing up to public bodies when they get it just plain wrong. That is exactly why we need judicial review and why legal aid is so vital to its effectiveness. It is about every citizen’s right, not just those with deep pockets, to challenge the state if it behaves unlawfully.

Those who may be most affected—the disadvantaged in our society—cannot do that alone. They rely on lawyers to represent them. These regulations will make it all but impossible for lawyers to take on their cases. That is a denial of justice. It undermines the rule of law. These regulations have been severely criticised by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights, not only for what the regulations do but for the way they have been introduced. To deny Parliament the opportunity for full debate on an issue of such importance is surely an abuse of our democratic principles.

If there is evidence of judicial review abuses—which the JCHR did not accept—the Government should address those specifically. It is simply wrong to punish all those who use it legitimately in an attempt to prevent the few who might not. As noble Lords will know, my lifelong passion has been championing the cause of independent living. In just the past few months, we have had two landmark judgments. Both came about through judicial review.

In December 2013, the Court of Appeal decided that the Minister for Disabled People had not properly considered the impact that closure of the Independent Living Fund would have on severely disabled people. In March, the Supreme Court ruled that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act.

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We cannot be confident that such cases will continue to come before the courts if these regulations are in place. For this reason alone, I wholeheartedly support the Motion.

Lord Cormack (Con): My Lords, it is always a privilege to follow the noble Baroness, Lady Campbell. She is an outstanding example to us all and it is a very humbling experience to follow her.

I speak, as she did, as a non-lawyer. I think it is good that non-lawyers should take part in a debate such as this. I was very glad that the noble and learned Baroness, Lady Butler-Sloss, referred to Magna Carta. I spent much of this afternoon discussing with people involved in it the preparation for our celebration of Magna Carta next year. I hope that next year we will underline in every home and every school in the land the fundamental importance of the rule of law. I would like to give every secondary school pupil in this country a copy of Lord Bingham’s splendid book on the rule of law.

It is all very well to say these things and to pay lip service to them. What we have to do is to pay more than lip service because what is being proposed by the Government is inimical to the rule of law as I understand it. Unlike the noble Lord, Lord Lester of Herne Hill, and the noble and learned Baroness, Lady Butler-Sloss, I was not happy about the change in the role of the Lord Chancellor, and I said so at the time. I feel mildly vindicated. I do not, in any sense, want to indulge in any sort of personal attack on any individual, but rather to talk briefly about the principle of the thing. I understand how government Ministers and those who run public bodies and local authorities can get very exasperated and impatient because of inconvenient challenges to their decisions. We are all human, and we all feel exasperated on occasion. But exasperation is not a reason for doing something that is not necessarily contrary to the rule of law but makes it more difficult for people to enjoy the benefits of the rule of law.

8 pm

I may not be a lawyer, but I have spent almost 44 years now—when next month comes—in the high court of Parliament, in one Chamber or another. I know that what the noble Baroness, Lady Campbell of Surbiton, said a few moments ago is true: all the way up and down this land, there are men and women who need the protection of the rule of law. Yes, of course, there are those who misuse things; of course, there are people who behave vexatiously—we know the term and we know the people. Those of us who have had parliamentary constituencies know the obsessives who come, week in, week out, month in, month out. But hard cases make bad law, and decisions of this sort make bad law. I was talking to a colleague earlier this evening and could not help but think that he made an extremely good point—he is one of your Lordships who has great experience in international finance. He said, “I don’t know any of the major companies with which I am involved who will invest in a country where the Government of the day cannot be defeated in the courts”. It was a very perceptive remark. We should be proud that in our country government can be defeated in the courts; the decisions of local authorities and public bodies can be defeated in the courts. If we are

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going to make it more difficult to get legal aid for judicial reviews, we have to do it by way of substantive legislation, not secondary legislation. If there was ever anything that was less suited to what we call Henry VIII actions, it is this. I have enormous personal regard for the present Lord Chancellor—I think that he is a highly accomplished politician—but I think that he has got it wrong. I hope that my noble friend who will reply to this debate will be able to convey to the Lord Chancellor the unease in all parts of your Lordships’ House. It is unease that is shared by people in all parties and in none, who have no party-political axe to grind on this occasion but who just believe that, on occasions, it is right to allow—or to risk, should I say?—the exasperated getting their way to some degree.

My noble friend Lord Carlile of Berriew referred to the trolleys of judicial review cases that he and other judges have to look at and readily acknowledged that many of those who seek judicial review really do not have much of a leg to stand on, but he also pointed out that in some surprising cases they do. Really, one can adapt that very well known saying that it is far better that 10 guilty men go free than the one innocent one is incarcerated to this subject as well: it is far better that there be 10 vexatious nuisances than that something that is truly damaging gets through.

Therefore, as a non-lawyer, I support the lawyers who have spoken this evening. I am grateful to the noble Lord, Lord Pannick, for the manner in which he introduced the debate—briefly, concisely and extremely persuasively—and I was also glad to be personally present to witness the repentance of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Baroness when they admitted that they had perhaps got it wrong. On this occasion, it is the Lord Chancellor who has got it wrong; let him put it right.

Lord Bach (Lab): My Lords, even more than usual, thanks are owed to the noble Lord, Lord Pannick, for tabling this regret Motion, because these regulations are laid, as we have heard, under Section 2 of LASPO, which requires only a negative statutory instrument. This allows for the implementation of the regulation before Parliament has any opportunity to debate it. Indeed, Parliament would have had no such opportunity if not for the noble Lord himself. All those with an interest in the rule of law and access to justice—and that should be all of us—once again owe a debt of gratitude to the noble Lord.

Other experts argue with some force that the appropriate way for Her Majesty’s Government legitimately to bring forward such a major reform—with the likely consequence that in practice many poor citizens will not be able to exercise every citizen’s right to question executive power—is by primary legislation. If this, however, is asking too much, these experts argue that the regulations should have been laid under Section 9 of LASPO, which obliges the Government to get parliamentary approval before the regulation comes into place. Thankfully we are having a debate, and I make a few points in support of the Motion of the noble Lord, Lord Pannick.

I perhaps ought to declare an interest. I am probably the only speaker to take part in this debate who has been on the wrong side of a judicial review. The court

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found against the decision I had taken. However, that encourages me even more to make the points I intend to make.

In his initial attack on judicial review, the Lord Chancellor implied in rather a general, throwaway manner that judicial review was somehow becoming the tool of left-wing pressure groups egged on by left-wing lawyers. This sort of talk may of course satisfy the Daily Telegraph on a bad day, or the Daily Mail on any day, but it does not accord with reality. Judicial review is supposed to be open to all citizens who want to challenge the decisions of the executive: it should be for all of us. Examples of citizens, rich and poor alike, taking this course are legion. For me, a current example is close to home, and I mention it briefly. The self-described descendants of King Richard III, who obtained a judicial review of the Lord Chancellor’s decision, cannot, I suggest, be described as left-wing activists whose purpose is to destroy civilisation as we know it.

Criticism can and must be made of the Lord Chancellor himself. He often gives the impression, I am afraid, that he does not always appreciate important principles that lie at the heart of our legal system, or that he does not have much understanding of how it works in practice. Both are important: the principles, and how they work in practice. It is unfair—on balance—to say that it is because he is not a lawyer. There are many non-lawyers who have a deep understanding of how precious and important our legal system is. However, I make the point that all four of the Lord Chancellor’s current crop of junior Ministers are distinguished lawyers. One in particular is distinguished—I will not embarrass him by naming him tonight but I think he knows who he is. I ask this question of that Minister: is it not time that he and his lawyer colleagues, who, just as much as the Lord Chancellor, must have the interests of justice as their prime obligation, girded up their loins, if I may use that expression, and together pointed out to their boss that many of the changes being made in his name seem to have scant concern for the concept of the rule of law, or access to justice, or how these important principles are put into practice in a system that I hope is still—but only just—the envy of the world?

The regulations we are debating are, I argue, a good example. Everyone who has looked at the regulations comes to the irresistible conclusion that for the LAA not to be allowed to pay any legal aid in a case where permission is refused and for the Lord Chancellor to have an unclear and uncertain discretion if a case never reaches the permission stage will have a chilling effect. It will mean that lawyers will not be able to take judicial review cases where the claimant cannot afford to pay. The result is that a system of law which is open to all will inevitably have become closed to many, and in particular to those who most need the protection of judicial review against the power of the Executive.

As the Bar Council put it in paragraph 9 of its very well argued briefing note:

“A fundamental concern is that a particular group only (namely, legally aided claimants) would be subject to these provisions. Public authorities would face no particular adverse consequences when they resisted applications for permission for no good reason. The position of privately funded claimants would remain unchanged.

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Treating legally aided claimants differently would be unfair. It does not happen in relation to other areas of law. It would create an unprecedented imbalance between the parties to litigation and will lead to inequality of arms”.

That is a powerful statement. When the Minister comes to reply, will he say whether he agrees with it?

Of course, the point has been made that there are already filters in place: a merits test before legal aid can be granted and, in every case, there is a permission stage. As the same note from the Bar Council says in paragraph 11,

“the existence of the filter amply serves its intended purpose. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not ‘rebalance’ judicial review; rather, it risks fatally undermining it”.

If one looks back to the passage of the LASPO Act through Parliament, the Government promised two safeguards. One was that exceptional cases would be a safety net for the area of social welfare law that was being taken out of scope. In its first year of operation, the exceptional cases point has turned out to be a miserable failure. The second safeguard—the noble Lord, Lord Pannick, spoke of this—was of course to be the continuation of legal aid for judicial review. As the Government argued in their own original Proposals for the Reform of Legal Aid in England and Wales in November 2010, judicial review represents,

“a crucial way of ensuring that state power is exercised responsibly”.

Throughout the lengthy debates in this House and in the other place, Ministers would use the existence of legal aid judicial review as a reason why it was safe to remove legal aid from social welfare law. Yet barely one year after Part 1 of that Act has come into force, the Government are introducing a regulation that is bound to have the effect of making it very unlikely that a poor or disabled person, or a citizen who needs legal aid, will be able to get justice by way of judicial review. The risk of not getting permission, and thus not getting any costs, is so great that providers simply cannot or will not be able to do it.

To my mind, this represents a particularly low point for the Government. They have got controversial legislation through Parliament on a false basis and further demeaned our legal system. Where will it end?

8.15 pm

Baroness Deech (CB): My Lords, I cannot compete with the expertise of other speakers before me, but I declare a couple of interests. First, I am a regulator of the profession—but not its representative. Secondly, despite what the noble Lord, Lord Bach, said, I have been involved in several judicial reviews and have won three and lost one, albeit ably represented by the noble Lord, Lord Pannick, with the noble Lord, Lord Lester, on the other side. I am in the middle of yet another. Bitter experience though it was, this does not deter me from supporting the noble Lord, Lord Pannick, in asking the Government to think again.

Why do we spend so much time in this House attempting to perfect the laws that come to us from the other place and our own? The ultimate way of enforcing them and making sure that they are good law is by judicial review—or at least the threat of judicial review. Many public bodies which make important decisions do so acting in the shadow of judicial review, expecting

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it to come. Knowing this makes them take much more care over how they apply our law. This House and the other House will be the losers if judicial review is restricted.

I tweeted this morning that we spent £9 billion on the Iraq war, spent £11 billion on the Olympics and may well spend £50 billion or more on HS2. Our legal system stands at risk for the sake of £200 million, which, in the global way of looking at things, is very little. I know that the Law Society and the Bar Council have put forward to the Ministry other ways of saving that money.

How will this particular reign of the current Lord Chancellor be remembered in the history books? It will be remembered as one of impending chaos. We now have a situation where, because of the attempts to save money, important fraud cases collapse because no barrister will work for the sum offered and the family courts are clogged up with emotional litigants in person thereby causing judges to have to run cases in a way that they really should not have to. Speaking as a regulator, I can say that altruistic young people, very often from black and ethnic minority backgrounds, are being deterred from taking up law as a profession because criminal law and family law will no longer offer them even the most modest of incomes with which to start out, bearing in mind that they have debts from university. I could not in all honesty encourage them to take up the profession right now. That means that 10 or 20 years down the line, there will be yet more complaints about the lack of social mobility and diversity in the profession. There will continue to be calls for more ethnic minority and female judges, and they will have been cut off right now because of these attempts—well meaning, I suppose—to save £200 million.

Why is this coming about? If one goes back a bit, the blame has to lie with the former Prime Minister Tony Blair, who made a constitutional change for which we are now paying. When I was a law student, I learned that the British constitution was never roughly pushed around; it simply inched along, changing a bit here and there, in response to circumstances. The position, however, of the Lord Chancellor was rather brutally changed a few years ago. True, the old-style Lord Chancellor offended against the separation of powers. He was a Speaker, he was a member of the Cabinet and he was a judge. But look where we are now. Our system of justice lacks a champion. The rule of law needs someone to look after it who is not looking for political preferment, looking to the next job or looking to save money and thereby garner acclaim. The system of justice needs an old-style champion complete with curly wig, stockings and all the rest of it, because that symbolised someone who was above it all, who had reached the top of the tree and whose only concern was access to justice and the smooth running of the system.

I am afraid that the current Ministry of Justice, so-called, might one day be called by the history books the “Ministry of Injustice”. What is going on is not right and I think that everyone in this Chamber, no matter what side they are sitting on, knows that very well. I support the noble Lord, Lord Pannick, and I congratulate him. I call upon the Ministry to think again.

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Baroness Stern (CB): My Lords, we in this House owe a great deal to the noble Lord, Lord Pannick, for his untiring attempts to preserve access to justice for vulnerable and powerless people—the legally aided claimants. I rise in support. I wanted to ensure that we had on record the concerns of some of the excellent people who work hard to get access to justice for powerless people, and I felt very privileged to hear the contribution from the noble Baroness, Lady Campbell of Surbiton, who is one of the stars in that firmament. Liberty does a great deal of this sort of work—I declare an interest as a trustee of the Civil Liberties Trust—but Liberty says that from its experience,

“the prospect of irrecoverable costs will place an unsustainable burden on claimant lawyers, making it simply too risky to pursue legal aid claims”.

I also want to mention young legal aid lawyers. Personally, and I am sure that other noble Lords will agree with me, I think we should be grateful that there is an organisation called Young Legal Aid Lawyers, and one wonders what they live on. The organisation has written to me about its work on legal aid immigration cases and the fear that the firms that these lawyers work for, in spite of their commitment to social justice, just cannot afford the risk of taking on some of these cases, even when they feel deeply that an injustice has taken place.

The Howard League for Penal Reform is extremely concerned about the effect of this measure on vulnerable people, including serving prisoners and those leaving prison. The Howard League referred me to the 2009 case of G, regarding a young person in trouble who was sleeping rough in a car. Through the Howard League he got a solicitor who brought judicial review proceedings about the responsibility to house him. Eventually the case reached the House of Lords where the noble and learned Baroness, Lady Hale, supported by the noble and learned Lord, Lord Hope, came out with a judgment that has resulted in a profound change in the way in which homeless young people are dealt with by local authorities. That one case has had a substantial effect on the lives of many children and saved a great deal of money.

Other judicial review cases have profoundly affected and improved the treatment of vulnerable prisoners—for example, a successful judicial review challenge with regard to the failure to transfer a prisoner with mental health problems from prison to a secure hospital for treatment; a successful judicial review challenge on behalf of a severely disabled prisoner in relation to the prison authorities’ failure to provide him with a motorised wheelchair and allocate him to an adapted disabled cell; a successful judicial review claim on behalf of a female prisoner with regard to the lack of disabled facilities in women’s open prisons; a successful judicial review on behalf of a prisoner with learning disabilities relating to the prison authorities’ failure to adapt offending behaviour programmes; and a successful judicial review challenge on behalf of a prisoner to stop prison authorities from reading his legal mail.

Those are all important matters that relate to the just treatment of vulnerable individuals and those who face discrimination. They are decisions that change the way in which things are done so that prisoners with learning disabilities can do offending behaviour

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programmes and maybe get parole, prisoners with serious mental health problems go to hospital and get treated and disabled prisoners are treated with respect for their human dignity. Does the Minister not regret just slightly that these sorts of developments will become more rare? Will he explain what he actually has against people such as those who have been described during this debate getting the wrongs that are done to them righted?

Lord Howarth of Newport (Lab): My Lords, we should be grateful to the members of the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights for their two excellent reports; and, of course, to the noble Lord, Lord Pannick, for securing this debate. Parliament ought to be vigilant for the liberties of the people. The committees and the noble Lord have indeed been so.

There are constitutional principles at stake in these regulations of bedrock importance: the principle that effective remedy should be available against arbitrary government and the principle that there should be equality under the law. Indeed, it is the rule of law itself which is in question. The law should be for the convenience of the people and not their governors. It is essential, therefore, that remedy should be available that is practical for an aggrieved citizen to seek, and that is available regardless of his personal means, against a public body that conducts itself in a manner that is unlawful, procedurally incorrect, incompetent, oppressive or unreasonable. If judicial review is not available to enable a challenge to wrongful decisions by the state or its agencies, we move away from a liberal constitution and towards executive absolutism.

Noble and learned Lords have explained in exactly what detailed respects these regulations are so offensive and how they would do their damage in practice. I pay tribute to them as I do to the range of admirable organisations and individuals who have made representations to us. It is extraordinary that we should be asked to rely on the funding of remedy against bad government at the discretion of the same Government who are themselves being impugned.

If it is unsure that legal aid will be available for the preparation of meritorious cases, then the freedom to seek judicial review is no more than the proverbial freedom of the poor man to dine at the Ritz. If a significant number of applications will not, under these regulations, be able to proceed, we lose important opportunities for the clarification of the law and for the improvement of public administration that the pressure of judicial review brings about.

Are these regulations really designed to save money? The Explanatory Memorandum asks us to accept that they are, and says that the primary objective of the Government in bringing in these regulations is to bear down on the overall cost of legal aid. I do not believe it. The Ministry of Justice’s estimate of how much might be saved is in the range, as the noble Lord, Lord Carlile of Berriew, mentioned, of between £1 million and £3 million. That is an extraordinarily vague assessment. We are also told by the department that somewhere between 20% and 69% of applications, if one goes by recent experience, would no longer receive legal aid. Again, the vagueness of that range—between

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20% and 69% of cases—is horrifying. It would seem that the department has not done its homework and, certainly, that it has no clue as to how much it might be going to save. That is before we consider what would happen to net costs. There can be little doubt that the costs of the changes brought in by these regulations would be shunted elsewhere and would certainly not, in the end, be avoided.

Nor has the department been able to make clear how the payments system will work. Reasonably enough, if solicitors and advocates cannot foresee with any confidence that they will be paid, they will not be willing to take on cases. This is a shoddy and improper way in which to legislate. I also believe that the generality of citizens of this country, if apprised of the significance of the issues at stake, will be more than happy to pay whatever taxes it takes to pay for a proper system of judicial review.

8.30 pm

Why, then, have the Government brought in these regulations? Ministers want to flick away a nuisance—to flick away irritants and inconveniences. They want to reduce the scope of those who presume to seek to frustrate executive power. The Lord Chancellor, Mr Grayling, wrote an article in the Daily Telegraph recently in which he made it clear that he finds the activities of pressure groups tiresome, and in particular regards their propensity to seek judicial review as an abuse of the system. We heard the noble Baroness, Lady Campbell of Surbiton, describe the significance of judicial review in her own tireless campaigning for the rights of disabled people. If the Lord Chancellor finds that tiresome, the rest of us find it entirely admirable. We are grateful to her and to the legal system that has permitted her and others who campaign as she does to achieve the advances in justice and in our society that have come about.

The Explanatory Memorandum says in paragraph 7.6:

“When considering cases the Lord Chancellor will look at the circumstances of each individual case”,

that is, when using his individual discretion. This Lord Chancellor is not a judge but a politician, and a famously combative one. He is a politician to the tips of his knuckledusters. It will be difficult for those who have the responsibility of administering the Legal Aid Agency to proceed with the scrupulous impartiality which I do not at all doubt they want to use as they go about their work. In the nature of their accountability, they cannot ignore the strongly held and assertively articulated views of the Lord Chancellor on the rights and wrongs of certain sorts of application for judicial review.

We cannot, therefore, be confident that an application that is just and in the public interest, but which may be politically inconvenient, would surely receive legal aid. The coalition parties profess to believe in freedom, but in this regard freedom is much safer in the hands of judges, who we know are politically neutral. Let them act as the filter and determine whether a case is totally without merit or meritorious. Let the judges do that, not politicians.

Montesquieu praised the British constitution for its checks and balances, notable among which was an independent judiciary. In the past, Parliament also

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acted as one of those checks on the Executive. Parliament restrained ministerial activism—the ministerial activism that now it all too routinely underwrites. In the past, convention inhibited Ministers from excessive legislative activism. However, we have now reached the stage in our politics at which every ambitious politician wants his 15 minutes of ministerial power during which he will make his mark, principally by legislating. Three-line Whips are indiscriminately applied to every item of government business. As we all know, one consequence of that is that we have had a huge increase in legislative activity. We have an excess of it, and as we know, too much of it is poorly drafted, poorly considered and, I must say, poorly scrutinised in Parliament, with the result that there is much to do when we seek to weed out the ill effects of badly prepared legislation.

As the scope and the pretensions of government have increased through the past 100 years, as the arm of the state has become longer in its reach and more pervasive, so the judges have developed judicial review. I applaud them for that. More than ever, it is necessary in our political culture that we should have a strong and reliable system of judicial review. We have a state of affairs now in which the politicians who find themselves in office, as a result of the vagaries of elections and of political patronage, feel an almost total entitlement to do what they will. They feel that they have carte blanche to do whatever they fancy, using the machinery of power, a majority in Parliament and a whipped vote.