Ben Brogan, the Daily Telegraph’s Deputy Editor, is fed up with the tent protest at Parliament Square. 

And what is more, he is fed up with Mayor Boris Johnson’s failure to sort it out:

“Well, those of you who have long wondered about that ghost town of dirty tents lining two sides of the square might have a look at this video, which we filmed a few days ago. We used a thermal camera in the same way we did at the St Paul’s protest. If anything the result is even more damning. Turns out the ‘peace camp’ looks deserted because… it’s deserted. MPs might like to ask why the Met/Westminster Council/Boris Johnson don’t pop round and take these abandoned articles away. Either that or stop bullying us about left luggage and locked bicycles being destroyed. The Mayor should get down there this afternoon with a van and clear the lot himself.”

Strong words: “get down there this afternoon”.

Is even the Daily Telegraph beginning to realise that the Mayor needs to get a grip?

Running London is not about sound bites and photo ops – it is about doing things for London and Londoners.

Whether Londoners agree with the Daily Telegraph’s fixation about tented protests or not, they do agree that London needs a Mayor who takes the job seriously and really does care about the city.

Earlier this evening I seconded an amendment to the Health and Social Care Bill which would have placed “a duty of candour” on those providing health services requiring them to disclose “full information to patients, their carers or representative about any incident or omission in or affecting their care which may have caused harm, or may in the future cause harm.”

My speech was as follows:

“Lord Harris of Haringey: My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint—for example, the death of a loved one—but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative’s case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago—the most recent case that I have come across, but I am sure there are many others—a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

“To err is human, to cover up is unforgiveable”.

That is precisely the concern that motivates this amendment.

In the White Paper Equity and excellence: Liberating the NHS, the Government said that they will require hospitals to be “open and honest” when things go wrong. That stems directly, I think, from the Liberal Democrats’ manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.

In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident—that implies that more than three-quarters of NHS trusts do not do so routinely—and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a “culture of denial”. Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.

Lord Mawhinney: My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, “Say nothing”. If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.

Lord Harris of Haringey: My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.”

After a debate of over 90 minutes, the Minister was not prepared to concede a statutory duty of candour although the Government is consulting on how they might make a “contractual” duty of candour work.

I am sure there will be more debate on this at the Report Stage of the Bill.

The Home Secretary’s statement on the UK Border Agency was repeated in the House of Lords by Lord Henley this afternoon.

My exchange with him was as follows:

“Lord Harris of Haringey: My Lords, is it not the case that Home Office Ministers frequently visit our border posts? In the circumstances, is it not surprising that they did not visit sites where these pilots were taking place—or if they did, that they did not notice or hear from the staff concerned how the pilots had been extended? Can the Minister also tell us what arrangements Ministers made to monitor the pilots and the way in which they were working?

Lord Henley: My Lords, speaking for myself, I have to say that I have not visited any of the pilots, but then I have not been in the Home Office for that long. No doubt I will make inquiries of my honourable and right honourable friends and let the noble Lord know what visits have been made. However, I believe that Ministers have visited ports and airports on quite a regular basis to see how these things operate. I certainly was intending to do that at some point in the near future, but when I will be able to manage that is another matter. Of course Ministers always want to evaluate any pilot schemes they put into place, whether by visits or by other means.”

So, it IS likely that Ministers will have visited the pilot sites and YES they will have been monitoring the pilots.

The announcement that Brodie Clark and other senior officials at the Border Agency have been suspended is dramatic, but in the past anything like this would have led to Ministerial resignations.

It certainly happened when Beverley Hughes unwittingly misled people over failures in the immigration service and issues about the (non-)deportation of foreign prisoners led to Charles Clarke leaving the Government in 2006.

So my guess is that Damian Green is spending a nervous weekend waiting for Number Ten’s call.

 

Eight days ago, the House of Lords adjourned in mid-debate on an amendment to the Health and Social Care Bill which would have restored the role of the Secretary of State for Health to “provide or secure the provision” of health services (which the Government’s Bill would have taken away).

Adjourning in mid-debate is a pretty rare (if not unique) procedure, but it has allowed for all sorts of last minute discussions to take place behind the scenes before the debate resumed this afternoon.

The original amendment was moved by Baroness Williams of Crosby (Shirley Williams as was) and was signed by Lord Patel (former President of the Royal College of Obstetricians), Baroness Glenys Thornton (Labour spokesperson on health in the Lords) and Baroness Margaret Jay (former Leader of the House).  Also debated at the same time was an amendment from Lord Mackay of Clashfern which talked more vaguely about the Secretary of State having “ultimate responsibility to Parliament for the provision of the health service”. 

In last week’s debate, I commented:

“I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government’s intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point. …

 I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord’s far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words “holds ultimate responsibility to Parliament”. It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.  …

The final test that your Lordships need to consider is: what do the public expect? The public’s expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.”

The Government had indicated that they were prepared to accept the Mackay amendment – indeed eight days ago they announced that the amendment had been agreed, even though the debate had not been finished.  And Baroness Williams had also hinted in her speech that she might accept the “compromise” offered by Lord Mackay.

Labour Peers, however, were standing firm and had indicated that they would divide the House on the Williams amendment even if she tried to withdraw it in favour of the Mackay version.

The Government was clearly running scared and at the last minute – just as the debate resumed this afternoon – indicated that if both amendments were withdrawn they would consult all sections of the House to try and find a form of words that would be acceptable to everybody.

There followed forty-five minutes of debate when all sides of the House indulged in an orgy of mutual admiration on reaching a sensible way forward.

This orgy, however, began to go rather flat (if that is not an inappropriate metaphor) when the Minister, Earl Howe,  having promised further discussions then began to explain in some detail why the Government disapproved of the Williams amendment, saying:

“In future, all NHS services will be provided by NHS trusts or foundation trusts, both of which have their own self-standing powers to provide services and do not rely on the Secretary of State’s duty to provide under Section 1(2), or by independent providers. The Secretary of State will have no powers to provide NHS services. That is the reality.  …

There is another reason why it would be wrong to reinstate the duty on the Secretary of State to provide. Under the legal framework of the Bill, the Secretary of State no longer possesses powers to direct others to provide services. Therefore, unless we were to re-impose a system of regulations or directions by which the Secretary of State could delegate his duty to provide and control its exercise, which would risk replicating the micromanagement of the status quo, it is hard to see how this legal obligation to provide services could be fulfilled. For obvious reasons, it would be undesirable to create a situation in which the Secretary of State provided services himself. Also, in practice he would lack the capacity to do so, for example in terms of staff and facilities.”

At which point, the House began to become rather restive – the Minister seemed to be saying that there could only be more discussions provided the eventual wording still restricted the role of the Secretary fo State and the right of Parliament to scrutinise what was happening in the NHS.

So, Baroness Patricia Scotland interrupted:

“My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.”

Then Baroness Glenys Thornton had a go:

“I respectfully say to the Minister that we could start the whole debate all over again if he continues telling us what the Government do or do not believe on this because that is presupposing, and possibly pre-empting, the discussions that we are about to have. The noble Lord may find it useful, but we have had a lot of this discussion. We have now, I thought, agreed to move into discussions outside the Chamber.”

The Minister kept reiterating that he thought it would be helpful to put on the record the Government’s position.

As he seemed to be preempting future discussions, I tried to get some clarity which elicited the following exchange:

“Lord Harris of Haringey: I appreciate that the noble Earl is moving to a position of not addressing those questions, but it is important that he tells the Committee whether the Government have a fixed mind on these matters or whether they are going to approach with an open mind the discussions that we, in an outbreak of consensus, have agreed should happen and try to build on that consensus. If the views are closed, it raises some very difficult issues for the Committee.

Earl Howe: No, my Lords, there are no closed views. That is the reason why I suggested earlier that it was time to reflect and engage in discussions in the spirit of co-operation. I would not have said that if I had had a closed mind to them. There would not have been any point in the discussions. I simply wished to do noble Lords the courtesy of answering their questions and addressing the points that they had made. If noble Lords would rather that I did not do that, then we can make life easier for ourselves. I will certainly write to noble Lords if they would like to inform me afterwards that they wish to receive a letter. If they do not, I will not write. It is entirely up to them. I do not wish to make work for myself unnecessarily.

I have said that I believe the balance of advantage for this Committee lies in our agreeing collectively not to amend the Bill at this stage and I am pleased that there seems to be consensus around that view. I believe instead that it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters. I would just say to my noble friend Lord Marks that that includes the issues that he has helpfully raised this afternoon. I believe that he is right to associate Clause 4 in particular with the matters that we have been considering. Those discussions can be carried out in an informal way with interested Peers or in individual meetings in the House or my department. There is a place for either type of discussion. My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role.

With that, I hope that no noble Lord will feel cheated by the brevity of my contribution and I shall sit down.”

So we’ve been promised discussions and a Government with an open mind.

We’ll just have to wait and see what transpires.

 

 

My regular reader (he knows who he is) will be aware that for most of this year I have been trying to find out whether Home Office Ministers have spent disproportionately more time seeing the senior leadership of the Metropolitan Police than the political leadership (ie the Mayor or the Deputy Mayor for Policing/Chair of the MPA).

I started in March with a Parliamentary Question.  I got a non-answer in May (way beyond the normal time limit).  I tried again and got another non-answer in July.  I complained about this to the Leader of the House of Lords, whilst at the same time trying for the third time to get the answer via a Parliamentary Question.  Within a week, the Leader of the House came back agreeing with me that the Home Office responses were inadequate and he wrote to the Home Office Minister asking that the Home Office supply me with the information requested.

The Home Office then wrote back to me and to the Leader of the House on 29th July, saying in essence that they always replied to questions about Home Office meetings in this unhelpful way.

So on 10th August, I made a request under the Freedom of Information Act to the Permanent Secretary asking her to supply me with a schedule of all meetings held by Home Office Ministers since 1^st May 2010 with (a) the Mayor of London and/or the Chair of the Metropolitan Police Authority, and (b) the Commissioner and/or Deputy Commissioner of the Metropolitan Police, showing the dates of all such meetings, their duration and a list of all those present.

A few weeks later, I received a letter (undated) from an official (status and title not specified, and with no contact details apart from the main Home Office postal address supplied), saying that my request was being considered as to whether it was covered by Section 36(2)(c) of the Act – ie that it might be prejudicial to the effective conduct of public affairs.  This consideration was so difficult that they would “need to extend the 20 day working day response period” (which is of course specified in the Act).  He promised a full response (presumably as to whether Section 36(2)(c) applied or not) by 30th September.

Meanwhile on 6th September, the Home Office responded to my latest Parliamentary Question, which had requested that the list of meetings be placed in the Library of the House, by saying that “Ministers do not routinely place records of their meetings in the House Library”.

I must admit that by now I was beginning to lose the will to live.

However, today – a further twenty working days having passed since the 30th September and still not having heard from the Home Office – I have written again to the Permanent Secretary in the following terms:

“Dear Dame Helen

You will recall that I wrote to you on 10^th August making the following request under the Freedom of Information Act: please supply me with a schedule of all meetings held by Home Office Ministers since 1^st May 2010 with (a) the Mayor of London and/or the Chair of the Metropolitan Police Authority, and (b) the Commissioner and/or Deputy Commissioner of the Metropolitan Police, showing the dates of all such meetings, their duration and a list of all those present.

I received an undated reply from Stephen Donaghy about a month later.  This said that the request was being considered under the exemption in Section 36(2)(c) of the Act, which relates to prejudice of the effective conduct of public affairs and that to consider the public interest test fully you needed to extend the response period.  You undertook a full response by 20^th September.

A further twenty working days have elapsed since the 20^th September and I have still to receive any reply or any explanation of the public interest issues that you feel may apply.

Given the Government’s commitment to openness, I cannot conceive of any reasons why this information should not be supplied.  I certainly cannot understand why it is taking so long to provide the answers.

I look forward to hearing from you shortly.  In the meantime, I am copying this letter to Sir Christopher Graham, the Information Commissioner.”

You might almost think the Home Office had something to hide ….

 

 

The first day of Committee stage consideration of the Government’s Health and Social Care Bill is taking place in the House of Lords today. 

To no-one’s surprise the LibDems again demonstrated that they are happy to place their loyalty to the Coalition with the Tories above the future of the National Health Service. 

They voted en masse to reject a Labour amendment which would have reaffirmed the basic principles of the NHS as the first clause of the Bill.

The amendment was to begin the Bill by stating:

“Principles of the Health Service in England

(1) Any person or body performing functions or exercising powers under this Act in relation to the Health Service in England must have regard to the principles and values outlined in the NHS Constitution.

(2) Any person or body performing functions or exercising powers under this Act in relation to the Health Service in England, or providing services as part of the Health Service in England, must provide quality, equity, integration and accountability, not the market.

(3) The primacy of patient care shall not be compromised by any structural or financial re-organisation of the Health Service in England.

(4) There must be transparency and openness wherever taxpayers’ money is being spent, and all accountable individuals and bodies should abide by the Nolan principles.

(5) “The Nolan principles” means the seven general principles of public life set out in the First Report of the Committee on Standards in Public Life (Cm 2850).

(6) Schedule (Principles of the Health Service in England) has effect.”

The amendment was rejected by 212 votes to 244.

59 Liberal Democrats voted against the amendment with only one (Baroness Tonge) in favour.*

So can someone just remind me – after all the fuss about how the LibDems were going to fight for the NHS – when did they decide that it wasn’t necessary to require providers of health and social care to provide ”quality, equity,  integration and accountability”, when did they decide that it doesn’t matter if the primacy of patient care is compromised by structural or financial re-organisation, and when did they decide that the Nolan principles of public life weren’t necessary for those responsible for the provision of the NHS?

 

*  The full figures were as follows: in favour of the amendment - 172 Labour Peers, 37 Crossbenchers and others, two Bishops and one LibDem; against the amendment – 147 Tory Peers, 38 Crossbenchers and others, and 59 LibDems.

I have just come across this YouTube clip of my report back to the Parliament and Internet Conference last week of the session I chaired on the opportunities presented to the creative industries by the internet.

The answer is a procedural motion on a back-bench Bill on House of Lords (interim) reform.

For what seems like the tenth year running (although I suspect it is probably only the fourth year), Lord Steel of Aikwood (Sir David Steel in old money) has introduced a Bill to introduce some sensible interim reforms to the House of Lords, pending a fuller reform of the Second Chamber.  These are to:

• end by-elections for hereditary peers (at present when one of the remaining ninety-odd hereditary peers dies, there is a by-election amongst existing hereditary peers – or sometimes all members of the House – to choose a replacement from a register of eligible hereditary peers who don’t sit in the House);
• allow any member of the House of Lords to resign from the House permanently;
• create a mechanism where peers who commit serious offences can be expelled from membership of the House; and
• put the existing House of Lords Appointments Commission (which recommends names to be appointed as cross-bench peers) on a statutory footing.

There are those in the House who want to talk the Bill out – most notably a number of hereditary peers who argue that there should be no change at all, pending a move to an elected House.  The procedural motion was designed to outmanoeuvre them.

And the House was crowded (at least for 10.30am on a Friday) to vote on the matter and in the event the House voted by 175 to 16 in support of the procedural motion.

Procedural wranglings are nonetheless expected to go on for at least another six hours.

After sixteen hours of debate on the Second Reading of the Government’s Health and Social Care Bill, the House of Lords voted on two motions.  The Government won both divisions. 

 The first would have killed the Bill outright by declining to give it a Second Reading – a very rare procedural vote in the House of Lords.  The Government won by 354 to 220.

The second vote was on a motion to refer three parts of the Bill to detailed scrutiny by a Special Select Committee of the House was defeated by 330 to 262.  The total vote reflected the largest turnout of Peers since 1993 (on the Maastricht Treaty - itself the largest vote recorded in the House of Lords since 1831) and it exceeded some of the big votes on Parliamentary Voting and Constituencies Bill. 

The vote also saw 198 Labour Peers voting for the Select Committee referral.  This is the largest vote by Labour Peers ever in the history of the House of Lords.

So where were the LibDems in all of this?

By and large they were with the Tories in pushing the Bill through.  Just two of them (Baronesses Nicholson of Winterbourne and Tonge) rebelled, while 80 (yes, eighty) LibDem Peers trooped through the lobby with 193 Conservatives.  The cross-benchers and others split 56 for the referral motion to 57 against.  The Archbishop of York and five other Bishops also voted for the referral motion.

So the lesson?  You cannot trust the LibDems with the NHS>