That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
My Lords, before turning to the substance of the amendment, I thought it would be a good time to address briefly the other major milestone in the creation of ARIA that we have reached since the Bill was last before this House. On 1 February, Dr Peter Highnam was announced as ARIA’s first CEO. I know that Peers had significant interest in this appointment during our previous debate on the Bill, given the critical role the CEO will play in leading the formation of the agency and directing its initial funding I hope noble Lords are reassured by Dr Highnam’s wealth of experience, as he joins from DARPA where he has served as deputy director since February 2018. I hope noble Lords will agree that he is uniquely capable of stepping into what will be a very important role at such a critical stage of its development. He will take up his post in May, starting discussions with stakeholders in the UK R&D system across academia, business, government and, of course, here in Parliament Amendment 1 deals with the conditions that ARIA may attach to its financial support, in response to the considerable concerns that have been so carefully and expertly championed by the noble Lord, Lord Browne of Ladyton. In his concluding remarks on Report, the noble Lord set out his desire, following more informal discussions, to hear my colleague, the Minster for Science, Research and Innovation, outline the Government’s position on this issue in the House of Commons. I certainly hope that, having heard the Minister’s remarks last Monday, he will have been pleased to hear him go slightly further than I was able to go when we last discussed the Bill in this House The Minister gave further assurances on two aspects, which I will quickly repeat here. The first is the seriousness with which he is taking the security of our academic and research communities, and new activities to identify and address risks from overseas collaborations while supporting institutional independence. He confirmed that obligations would be placed on ARIA to work closely with our national security apparatus, to maintain internal expertise to advise ARIA’s board and programme managers, and to work with the recipients of ARIA’s funding in universities and businesses on research-specific security issues. This will ensure that ARIA’s research and innovation is protected from hostile actors, and, most importantly, connected to the Government’s wider agenda on strategic technological advantage Secondly, and more broadly, the Minister addressed the benefits created by ARIA and our approach to maximising and retaining them. Specific businesses, often in important and emerging areas of technology, have been mentioned many times during our debate on this amendment, and the lack of consistent guiding principles behind the engagement and support that they have received from government has been held up for particular criticism. On this, I hope that noble Lords noted the Science Minister’s identification of the serious new machinery of government coming together to drive the agenda of strategic industrial advantage of UK science and technology as a fundamental priority for the Government and for him personally The office for science and technology strategy, the national technology adviser and national science and technology council together represent a new and significant architecture to support a new strategic government approach. Clearly, some patience will be needed while this beds in, but the ambition which the Science Minister outlined behind this change should go at least some way towards addressing the concerns that have been raised previously by the noble Lord, Lord Browne Similarly, questions have been raised in both Houses about ARIA’s obligations to create wider public benefit, and I should reiterate that public investment in research and development, including through ARIA, must drive long-term socioeconomic benefit and deliver value to UK taxpayers. This obligation will be felt by ARIA on several levels: first, through the Bill and ARIA’s statutory duty in Clause 2(6) to consider economic growth or economic benefit to the UK, among other considerations. This is the right degree of specificity for primary legislation. Secondly, mechanisms for assessing how effectively ARIA carries out its functions, including this duty towards UK benefit, will be detailed in ARIA’s framework document. This was the other set of commitments which the Science Minister provided in the House of Commons These mechanisms will enable the action that ARIA takes to respond to its statutory duty towards UK benefit to be evaluated. As the Minister set out, this will include obligations for ARIA to put in place a programme evaluation framework, considering its strategic objectives as well as detailing the contents of its reporting, which the Government and Parliament will use to hold ARIA to account for the value it provides in all the usual ways. Again, it is right that these more specific obligations are included in the framework document, as they must reflect the structure of ARIA’s programmes and require greater flexibility. These obligations will be set as ARIA’s overall governance and evaluation framework is finalised over the coming months, but I should like to echo the Science Minister’s comments that we will take seriously the concerns raised in the context of this amendment when doing so, as we share many of them The third and final aspect concerns the ways in which ARIA implements the obligations imposed on it—the statutory duty in the Bill and the obligations within the framework agreement that will help to give effect to it. As I have stated previously, we might expect ARIA to do so through its contracting and granting arrangements by requiring financial support to be repaid if recipients do not make an effort to exploit the outcomes within the UK—or, in some cases, by taking equity or retaining IP rights and seeking to maximise the value of these assets within the public sector. The Bill enables ARIA to do these things, but it is an arm’s-length body; we have placed a premium on its operational independence, and government should not intervene in its decision-making on these issues The questions for us here should be these. Does ARIA have all the powers and tools it needs to choose independently from a full suite of ways in which to deliver these obligations? I would submit that it does. Have we got the balance right in the first place with the obligations to produce and evidence benefit placed on ARIA through the Bill and in the framework document, which we then use to hold it to account? On the second point, I recognise that noble Lords have been pressing for us to go further, and I should reflect that in response to the questions posed in this House, and by the noble Lord, Lord Browne, in particular, we have now made concrete commitments to Parliament about the obligations on ARIA and greatly refined our thinking on the work that it is still to do I hope the Science Minister’s assurances were useful in demonstrating the seriousness with which these concerns are being taken and our commitment to reflecting a mindset focused on public benefit in ARIA’s governance framework, as that document is finalised. I therefore strongly hope that noble Lords will be content with the progress that has been made on this issue and I look forward to reaching further milestones in the creation of this important new public body. I beg to move.
My Lords, I thank the Minister for his opening remarks and his comprehensive repetition of what George Freeman, the Minister, said in the other place. To a degree, I am reassured. My concern is how I will know that the Government live up to the undertakings implied in the words of the Minister. I will come back to him in a moment. I intend to be brief I particularly thank the Minister for his generous remarks about me, but they ought to be shared by a significant number of Members in all parts of the House who contributed to the debate we had on the amendment. That the House was minded to support the amendment had more to do with Members’ combined advocacy than the way in which I introduced it. I also thank the Minister and his office for earlier this week drawing my attention to the Government’s recent announcement that Dr Peter Highnam has been appointed as ARIA’s first CEO. This man seems uniquely qualified to do this job; I suppose DARPA is the only place that he could have got the experience. He is also uniquely equipped to negotiate the framework agreement with the Government, which will be important to how ARIA works I accept that the Commons reason is not challengeable, and I do not intend to debate that or to divide the House on the noble Lord’s Motion. However, as the Minister and his office helpfully reminded me a week ago, while speaking to my amendment on Report, I set out my wish to hear the Science Minister address at the Dispatch Box the issues that prompted the amendment in the first place. At least I should address what he said, and I will do that for a few minutes, with the leave of the House In the other place, George Freeman acknowledged the importance of ARIA having a duty to the taxpayer to ensure that the intellectual property generated by its investment in R&D is commercialised to the advantage of the UK economy primarily, and to ensure that it is not “haemorrhaging intellectual property of value to the UK.”—[Official Report, Commons, 31/1/22; col. 86.] That reflects what he said to a number of noble Lords who met him before Report. To paraphrase another member of the Government, he gets it and clearly seems to understand the issue. The question is whether the Government have a plan to address this issue and will be able to share the development of the plan with Parliament properly. That is what I want to concentrate on now Turning to what the Science Minister said, he first referred to the terms of the amendment and argued that, as drafted, it added only examples of the conditions that ARIA may attach to financial support and, as it already has a general power to do just that, it represented a drafting change that cannot be accepted. There is no merit in this argument. The fact is that the Bill, as already drafted by the Government, already has examples of conditions that ARIA may attach to financial support in Clause 2. They are almost certainly there because the Government want to highlight those powers, not because those examples need to be there to give those powers to ARIA. Our amendment simply adds to their existing list and has a similar motivation—to emphasise and highlight the importance of this power On the specific issue of predatory overseas acquisition of IP through foreign takeover of UK businesses where there has been substantial public investment in R&D—there are many past examples of this, to the detriment of the UK economy—the Minister reassured the other place that the National Security and Investment Act 2021, which fully commenced in January, already provides a relevant and sufficient framework for the Government to scrutinise acquisitions on national security grounds. The Minister also referred to a broader strand of work that is under way to enhance that statutory framework, including other unspecified complementary measures designed to help the Government strengthen our protections. Perhaps the Minister can expand on that. He made some general references to it, but I am not clear as to what work is going on. I think the House would benefit if there was further specification. It may not be appropriate to do it now, but maybe it could be spelled out more clearly at some time in the future The Minister reassured the House that the Bill already provides the Secretary of State with a broader power of direction over ARIA on issues of national security, but the amendment was never intended to intervene in the Secretary of State’s powers. This is of limited comfort, as my honourable friend Chi Onwurah pointed out, national security in the relevant legislation, the NSI 2021, is narrowly defined, and it does not include economic security, despite attempts by Labour to expand the definition in that Act so that it would include this. It therefore does not address the issue of intellectual property and its economic value The Minister then pointed out that the because of the terms of Clause 2(6), ARIA must have regard to economic growth or economic benefit in the UK, and the mechanism for scrutiny by government and Parliament will be in what the Minister refers to as the framework document. This is a weapon which the Government deploy regularly to see off amendments to the Bill. On Report, the Minister used the potential of the framework agreement, and what it could include, five times in debates. The problem is that none of us has seen the outline of the framework document, or even the Government’s bid for the negotiations of what the framework document will include. Until we see that, there is no way that any of us can judge its merit as a mechanism for dealing with the issues that we have raised Perhaps during the negotiations that can at least now commence after May, when there is a CEO, the Government will undertake to make regular statements, or at least one statement, to the House about their negotiating position, so that we get some sense of whether the many concerns about this Bill that the House has shared with the Minister can be allayed by the framework agreement or document. There is now a CEO and these negotiations can begin Finally, in the debate that took place in the other place, at col. 87, the Minister turned to the question of how ARIA responds to the UK’s strategic interests in science and technology more generally, where these may not fall under national security. I think he played his ace there: drawing attention first to the integrated review, which he did not expand on, and then to the role of the new Office for Science and Technology Strategy and the national science and technology council, and the Government’s ambition to ensure that there is a serious, strategic machinery of government showing a commitment to the strategic industrial advantage of UK science and technology. The Government’s argument is strong: we should be persuaded that this will deal with these issues because the Government have a core to their infrastructure that will drive these ambitions. There is a fundamental difficulty with this, however: it is impossible to find, in any government documents, any information about either the Office for Science and Technology Strategy, or the national science and technology council, which is a sub-committee of the Cabinet, other than that they exist and a very broad outline of the first organisation, which is designed to service the second one. I do not know how we are supposed to evaluate the strategic machinery of government, unless we know what they do. There is something worrying happening to the accountability in our Government at the moment. There is a proliferation of sub-committees of the Cabinet. We have gone from having about six to having 20 in a matter of months. Almost every area of important public policy now has one or more such sub-committees to deal with it. The pattern appears to be—it certainly is with climate change—a strategic sub-committee and an implementation sub-committee. You can find out nothing about what any of these committees do So that we know what the relationship between Parliament and these committees now is, I will quote for the benefit of the House what Alok Sharma, the COP president, said to your Lordships’ Environment and Climate Change Committee in answer to a very reasonable question, in a questionnaire sent by the committee, about these two key pieces of machinery for climate change. The committee asked him: “Are the two relevant Cabinet Committees”— that is, the strategy committee and the implementation committee, which he chairs— “expected to continue in the long-term, and what plans does the Government have to increase transparency around their proceedings?” The answer to this is in a letter, which is on the committee’s website. I will read it in short, because in the first part Alok Sharma gave the impression that they are intended to continue, but he said: “With respect to Committee frequency and transparency, it is a long-established precedent that information about the discussions that have taken place in Cabinet and its Committees, and how often they have met, is not normally shared publicly” So that is it If that is to be it for this infrastructure, which sits at the heart of the development of science and technology and ARIA, we will not find out anything. I honestly have no way of knowing whether I should be reassured by what the Minister said in the other place, if that was his ace card. To paraphrase my honourable friend Chi Onwurah in the other place, the Minister has set out that he shares our concerns, but I am afraid that I cannot really assess whether he has a plan to address them, because there is a whole part of what he intends to do that I will never be allowed to know.
My Lords, I very much appreciate what my noble friend on the Front Bench has said by way of response to the several debates that we had on the Bill about the centrality of intellectual property, and its protection and exploitation by ARIA. Often in your Lordships’ House, we send amendments to the other place, and occasionally—perhaps often—we find that they are not given the weight of debate at the other end that we think they deserve. On this occasion, it did, and I was much reassured by the Science Minister’s response, and by the appointment of Dr Highnam to the chief executive post I want to raise one question. In the midst of the many reassuring things that were said, including that the powers exist for ARIA, or through the NS&I Act, the framework document remains. I raised one issue on that in an amendment, which was whether under the framework document ARIA would be able to retain and reinvest the exploitation of intellectual property arising from its investments so as to create a growing activity in support of its mission of disruptive innovation. I hope that will be incorporated in the framework document. It was not referred to, so I hope that my noble friend will take note of it and that the Treasury will allow this to happen.
My Lords, I will not detain the House for long, not least because many of the points I wanted to make have been ably made by my noble friend Lord Browne. I welcome much of the Minister’s speech and the appointment of the chief executive-designate. Considering his background, I venture to suggest that by the time he leaves the post he is about to fill, the name of the agency may have changed from ARIA to DARIA. That would reflect his personal background and possibly the way in which developments may move I also welcome what was said in another place by the Minister for Science, who the noble Lord, Lord Lansley, referred to. I have a high regard for the Minister for Science and thought that he addressed seriously some of the concerns raised in our debates. However, to echo my noble friend, I point out that the National Security and Investment Act still provides too narrow a basis for protecting what really matters about ARIA, which is the intellectual property that it is going to generate. It is a strange position to be in, but I think that the definition of national security, which does not take into account the economic security of this country and the intellectual property attached to that, would be a mistake and possibly a loophole. I regret the fact that the framework document to which the Minister referred has not yet been seen by anybody, and I hope that in the months and years ahead we will be able to debate that framework and the new scientific architecture, which the Minister rightly referred to, because we are moving into a new era It is not often that Governments anywhere launch a new agency with so little idea about what it will do and how it will do it. Nevertheless, I wish it well, and I hope that in the months and years ahead when we come back to discuss ARIA and its development we will be able to see the progress it has made, which I for one hope it will.
My Lords, it came as no surprise that the Government used their majority to negate the amendment of the noble Lord, Lord Browne. The noble Lord has, in his tenacious way, set out why he regrets that, and I agree with him. It is not to be—it will not go to a vote—but I hope that the ARIA leadership will be more careful when they write the contracts for the money that they will give than perhaps the Government seem to be with enshrining this in law I agree with the noble Lord, Lord Lansley, that the Science Minister’s comments were very helpful. They were more than we would usually get in these games of ping-pong, and that is to his credit As the Minister set out, since we sent this Bill to the other place, the name of the ARIA CEO has been announced. It is nice to see the Minister looking so pleased about things. He often looks quite downcast, so it is quite good for him to arrive with something that he can be pleased about. We wish Dr Highnam all speed and wish him well in what is a very important task Others have suggested that we look forward to the framework document emerging. In answer to the previous speaker, I do not think that the Minister has not shared with us something that he is sitting on; the Minister has not seen the framework agreement yet either, because it has not been written. However, we look forward to seeing it as soon as it has The Government have also had some important things to say about their focus for future research funding—I am talking here about the UKRI numbers. In their levelling-up White Paper, they announced the intention to increase the percentage of funding from what is rather dismissively called the golden triangle to other institutions, often but not exclusively further north. I should remind your Lordships that I am an alumnus of Imperial College Very briefly, I wanted to relate this to ARIA and, more importantly, to the commercialisation of innovation. There is a disparity between universities that are better at commercialising their innovation and thereby having another income stream, and those that are less good at that. I hope that ARIA is able to lead some excellence in that and spread the effective commercialisation of knowledge and innovation better. That would contribute to the Government’s levelling-up agenda at the same time I also recently met with the UK Innovation & Science Seed Fund—known as UKI2S—which, as the Minister will know, acts as a bridge between public sector research and private capital. I would be interested to know from the Minister how this organisation can fit with ARIA and improve our overall commercialisation. I am sure the Minister will admit that the UK’s record on commercialisation has been patchy in the past and could definitely improve. I would suggest that UKI2S is one of the models that ought to be taken into account. I hope that the Minister might meet with me and that organisation to discuss this and how it might play into this space with its track record in order to deliver on the promise of ARIA. I think we all share the Government’s desire to—in the Minister’s words—drive the agenda for strategic, industrial advantage. With that, we hope that in 10 years’ time, ARIA will be seen to have played an important part in achieving that objective.
My Lords, we accept the reason given by the other place for rejecting Amendment 1, but we continue to disagree on the substance. I place on record my thanks to the noble Lord, Lord Browne of Ladyton, for his work on this amendment. His sparkling curiosity and polymath tendencies, combined with his government experience, make him ideally suited to this issue. He has been incredibly generous with his time and knowledge, and I am grateful to him for that The noble Lord, Lord Browne, suggested a sensible amendment to protect benefits arising from the UK’s creativity and ingenuity in ensuring that the taxpayer—the investor—retains the benefit of it. The majority of noble Lords agreed with my noble friend when we tested the will of the House. In the absence of any measures enabling sufficient scrutiny of ARIA’s activities, we felt we needed this amendment. We are clear that the benefits of ARIA’s investments must be felt in the UK. Lords Amendment 1 would have assisted in this; it would have given ARIA the option to treat its financial support to a business as convertible into an equity interest in the business, and thus to benefit from intellectual property created with ARIA’s support It would also have enabled ARIA to require consent during the 10 years following financial or resource support if the business intended to transfer intellectual property abroad or transfer a controlling interest to a business not resident in the UK. As my honourable friend Chi Onwurah said in the other place, we have to acknowledge that currently “the UK does not provide a sufficiently supportive environment for innovation start-ups to thrive. That is why we have already lost so many of them.”—[Official Report, Commons, 31/2/21; col. 89.] It is welcome that Ministers have said they agree with our concerns. It is just unfortunate that the Government did not want to take this opportunity to act on our shared concerns and seemed to lack the resolve to do anything about it on this occasion. Finally, I wish the new leadership of ARIA and the agency itself well. We look forward to the innovations and inventions that it is able to bring us.
I thank the noble Lord, Lord Browne, in particular, and all noble Lords who participated in this brief debate. I do not think there is a huge disagreement between us on this. The noble Lord, Lord Browne, wanted us to be more specific; our point is that ARIA already has the power and ability to do all the things he mentioned, but we want it to retain its operational independence and flexibility I will address a number of the points the noble Lord raised. He will have carefully noted, and from his ministerial experience will know, that in the National Security and Investment Act we deliberately did not define what national security is, following the practice of all previous Governments, to give ourselves the flexibility to adapt to changing circumstances The noble Lord also asked for further details on what the Science Minister said in the other place. We have published guidance to the sector on trusted research and supported it in publishing that guidance. We have broadened the scope of the academic technology access scheme and defined the rules on export controls as they apply to research activity. The terms and conditions for government research grants were also amended last September to require due diligence and checks for any overseas collaboration As expected, a number of noble Lords raised the framework document. The noble Lord, Lord Fox, is right: I have not seen a final version of the framework document precisely because it has not been finished yet. It will be negotiated between BEIS and ARIA’s leadership team, including the new chief executive and chairman when he or she is appointed, for which we are currently recruiting. I assure the House that as soon as it has been agreed, we will share it with the House as soon as possible My noble friend Lord Lansley asked a very good question about the retention of any possible revenues within ARIA. He will know from his government experience that the Treasury will wish to negotiate these matters directly with the agency, so I will not step on the Chancellor’s toes and get myself into trouble by overcommitting him on that. I am sure that ARIA and the Treasury will want to have a full and frank discussion on these matters On the questions from the noble Lord, Lord Fox, I assure him that we expect ARIA to work with all partners across the research and development landscape, including on the commercialisation of products. He asked for a meeting with me. I suggest that I am not the right person to meet on that issue; it would be more appropriate for him to meet the Science Minister, who has responsibility for pursuing this support for the agency, and I will certainly put that question to him The ARIA team has met UKRI and its sponsors. We are learning lessons from this and other mindsets and models for how ARIA can ensure the successful translation and commercialisation of its technologies. I hope that that provides the appropriate assurances for the noble Lord, Lord Fox I think I have dealt with all the questions that were asked. With that, I beg to move.
My Lords, in the recent Committee debate I undertook to reread Hansard because I particularly wanted to address the views expressed by those who disagreed with this amendment. I have done so. I continue to respect those views but I do not share them. I am going to urge the House that understandable reasons should give way to compelling ones The arguments focused largely on the merits or demerits of the amendment, but in a sense what we were discussing does not really matter because, as I hope I made clear in my reply to the debate, it is obviously not for this House to decide the issue; it is for the other place to do so. It is a decision for the elected Chamber, and we are not elected The purpose of the amendment is simple: the objective is to offer the other place an opportunity to reflect again on this hugely important constitutional Bill and see whether it may have second thoughts. If the second thoughts lead the other place to the same view, so be it: that will be its view, and we must accept the view of the elected Chamber. However, I intend to abide by whatever decision is made by it after what I hope may be a fuller consideration of the merits or demerits of the arguments both ways—much fuller than it was, given the somewhat peremptory way in which this entire Bill was dealt with We have become habituated—have we not?—to the steady, apparently unstoppable accumulation of power in No. 10 Downing Street, and we have done so while simultaneously the authority and weight of Parliament itself, and the House of Commons in particular, have been diminishing. It is astonishing to think that we are now proposing to resurrect the medieval concept of the prerogative, the concept on which the divine right of kings was based. King James, and King Charles just across the road, will be laughing as they turn in their graves. The king lost his head in part because he kept dissolving Parliament I wonder whether any noble Lords heard Oliver Cromwell thinking of stepping off his plinth outside; I thought I heard a movement or two, but he has gone back. Cromwell, having been a great parliamentarian, decided that Parliament was not doing what he wanted, so Parliament was “purged”—an interesting thought and an interesting use of words. At that stage in our history, Parliament had obtained, through the Long Parliament, the right to dissolve Parliament. Cromwell did not dissolve it because he did not have the power to do so; he simply purged it. What are we doing resurrecting an ancient power in the 21st century?
My Lords, I have signed once more on Report this amendment, along with the noble and learned Lord, Lord Judge, and I entirely agree with what he just said to the House. That is partly in the light of the debate in Committee, which compellingly reinforced the need to send this issue back to the other place to be reconsidered, and for it to make the final decision, as the noble and learned Lord says I say to colleagues, not least on this side of the House, that the Conservative Party’s manifesto in 2019, which we are implementing, said: “We will get rid of the Fixed Term Parliaments Act.” This legislation, including Amendment 1, will do that. So the Conservative manifesto commitment will be met. The question, of course, is what we put in its place My noble friend on the Front Bench will have his chance to say so, but he has said that the purpose of the Bill is to restore the prerogative power, or the status quo ante. I have to say that it still feels like generals fighting the last war—they are fixed on the events of the autumn of 2019, and, as the noble and learned Lord, Lord Judge, has amply illustrated, we are not in the situation of the end of 2019 and we may never be again. If one looks at the events of the autumn of 2019, one sees that three times the Prime Minister sought a general election and failed to secure a two-thirds majority but in each case secured a simple majority. The proposition, which seems to be at the heart of the Government’s approach, is that this Bill prevents gridlock, but in my view a simple majority of the House of Commons would, in almost all circumstances, also prevent such gridlock More to the point, as the noble and learned Lord, Lord Judge, said, is the question that the other place has to answer: should this once again be an executive decision of the Prime Minister of the day, regardless of the view of the House of Commons? I will not go on at length, but I repeat my view that the Prime Minister exercises the responsibility to request a Dissolution by virtue of the fact that he or she commands a majority in the House of Commons. If a Prime Minister loses the confidence of the House of Commons, by what right do they go to the palace and seek a Dissolution? In the circumstances in which a Prime Minister loses the confidence of his or her own party, and of the House of Commons by extension, there may be, and often has been in the past, an opportunity for a new Administration to be formed who enjoy the command of a majority in the House of Commons. Under those circumstances, it seems to me that it would not be right to seek a Dissolution The noble and learned Lord referred to what Mr Rees-Mogg said. I am a former Leader of the House of Commons and I believe that the job of the Leader of the House of Commons is to explain the Government’s thinking to the House and explain the House’s thinking to the Government. On this occasion, the latter did not happen. The House was not in a mind to have a Dissolution and an election and I do not think that the Leader of the House was reflecting any view in the House of Commons to that effect. It was, therefore, a threat—an unconstitutional threat, since the Fixed-term Parliaments Act currently applies and such a threat could not be given effect unless and until this legislation passes into law. My point is that we should give an opportunity not to restore the prerogative in the form in which it existed in the past but to qualify it by reference to what is the reality of our constitution—that sovereignty rests in the sovereign in Parliament, that that must be reflected by a majority in the House of Commons and that therefore a request for an election should be backed by a simple majority in the House of Commons. Anything other than those circumstances would be an illegitimate request and contrary to the view of Parliament.
My Lords, I mentioned in Committee and I mention again to the House now that I have always been a strong critic of the Fixed-term Parliaments Act and I was pleased when the Government decided to do away with it. But I find myself in a strange position now of being pleased that they have introduced the Bill but disappointed with it, because it is a messy and—for the reasons that the noble and learned Lord, Lord Judge, said—counterintuitive solution, in that it is moving power back to the monarch. It is a messy solution to a problem that was particular, in most respects, to the 2017-19 Parliament and which, as the noble Lord, Lord Lansley, said, we are now trying to repair or prevent from happening again My message is simply that the shenanigans of the 2017-19 Parliament were a result, more than anything else, of the 2011 Fixed-term Parliaments Act, which this Bill will repeal. We need not worry about that kind of problem again because it is incredibly unlikely—impossible, I would say—that we will see those sets of circumstances recurring. Of course, the main reason why the Government could not get a majority for a general election—a facility that I strongly believe should be available to a Government—was the requirement for a two-thirds majority. On each occasion when Boris Johnson went to Parliament and asked for a majority, it gave him one, but not a two-thirds majority The solution being offered by the noble and learned Lord, Lord Judge, is beautiful in its simplicity. It solves all the problems with one mighty bound. The main problems of this Bill—or rather, the problems that it does not resolve—are the possible interference by the judiciary, the possible politicisation of the role of the monarch and the argument that we can all have about what the Dissolution principles should be, which a lot of the debate in the Joint Committee was about. With one mighty bound we are free, if we say that you need a majority in the House of Commons. It prevents—for ever—any possibility of the monarch again being involved in this most political of decisions and of saying to a democratically elected Prime Minister, “No, sorry, I’m the monarch; you think you should go to the people, but I’m telling you that you can’t.” It is inconceivable that that could happen and, if it did, it would be a constitutional crisis of a magnitude that we have not so far seen. You get rid of all that area of debate and problem. You also get rid of this ugly ouster clause, to which we will come in a moment. The courts are kept out of it because no court is going to challenge a majority verdict of the House of Commons. With a simple majority in the House of Commons, it is job done. The courts and the monarch are out of it.
My Lords, I apologise that I was not present during the Committee stage. The noble and learned Lord, Lord Judge, knows that I have great respect for him. We enjoyed working together in opposition to the Government’s Internal Market Bill. He was courteous enough to ask me my opinion of his amendment before he put it down. I told him that I would be unable to support it. The reason is the answer to the question that he posed during his remarks, to which my noble friend Lord Lansley purported, but failed, to give an answer, which is: what happens if there is, as there could be—and no one in your Lordships’ House can suggest that there could never be—a revival of the circumstances in the House of Commons between 2017 and 2019? The position was that the Government could not properly govern because they did not have a majority for many of the things that they wanted to do. The House of Commons did not want them to govern and so was content with that stalemate position and that hobbled Government, which did no good whatever to Parliament or the country I do not understand why this is referred to as a messy Bill. It is a perfectly straightforward Bill, which seeks to restore the position as it was before the Fixed- term Parliaments Act. The Act was necessary for the course of the coalition Government, but it should never have been made permanent. I very much regret that I did not vote for an amendment in your Lordships’ House that would have made it temporary.
Would the noble Lord acknowledge, as my noble friend has proved, that, in the circumstances about which he is talking, the Government had a majority for an election? Therefore, this amendment would not have created the difficulties that he is suggesting.
The noble Baroness and her friends cannot possibly give an assurance that a circumstance will not arise not precisely the same as that which occurred between 2017 and 2019 but in which a simple majority could not be obtained for an election, because a majority of the House of Commons was content to stymie and hobble the Government and keep them in place in that paralysed state, which was what we saw in that unhappy time.
The noble Lord seems to be missing the fundamental fact that the problems to which he referred took place under the Fixed-term Parliaments Act, which required a two-thirds majority. This Bill gets rid of the Fixed-term Parliaments Act. The circumstances that occurred in 2017-19, as the noble Lord, Lord Lansley, pointed out, cannot recur in absence of the Fixed-term Parliaments Act.
With respect to the noble Lord—he knows I have great respect for him—I do not think that he was listening to what I have just said in answer to his noble friend. All this Bill does is to replace the bar of the two-thirds majority which the Fixed-term Parliaments Act provided with a slightly lower bar, but there is still a bar and it is perfectly conceivable that we could have a House of Commons in which the Government did not have a majority.
I am listening to the noble Lord with care and I think that there is a fundamental flaw in his argument. On that basis, does he not accept that a simple majority is used for every piece of legislation in the House of Commons? Why should calling a general election be any different? A simple majority is a sensible bar and a sensible test of whether the country should have an election.
The answer to the noble Baroness is this: if legislation is put before the House of Commons and it fails because there is no simple majority for it, there is a simple answer—the legislation fails. You do not have a situation that could go on for years in which a Government remain in office in a state of paralysis because that is what a majority of the House of Commons wants. That is the mischief that would arise in relation to this Bill.
But why should a Prime Minister who cannot get a majority of the House of Commons for an election be entitled to a Dissolution?
Because our Government need decision. If you have a situation in which you have paralysis in the House of Commons, it is in the national interest that this should be resolved. The way in which it has traditionally been resolved and would now be resolved again if this Bill were passed would be by the Prime Minister asking Her Majesty, the monarch, to exercise the prerogative to provide a general election, which would resolve that paralysis I will say one more thing on Clause 3, because I do not want to trouble your Lordships again. The noble Lord, Lord Grocott, said that the ouster clause was completely unnecessary because no court would ever challenge the decision of a majority of the House of Commons. Had the noble Lord been present on Monday, he would have heard your Lordships’ House debate a number of occasions in which the courts had challenged legislation passed by a majority of the House of Commons. I am afraid that the noble Lord’s reliance on the reticence of the courts in these matters is considerably misplaced, particularly having regard to their decision on Prorogation. For that reason, Clause 3 is absolutely essential.
We are talking about a resolution of the House of Commons. Can he give any circumstance —we are not talking about legislation; we are talking about resolution—where a resolution of the Commons was overturned by the courts or was even regarded as being justiciable by the courts?
The noble Lord talks about a resolution, but what he previously said was that the courts could not be imagined challenging any decision that obtained a majority in the House of Commons. It was to that observation that I replied. There are many examples and I refer him to the Hansard of Monday’s debate.
My Lords, I rise briefly to support my noble friend’s amendment, but with reservations. My reservation is that which has been put forward by the noble Lord, Lord Howard. It is not inconceivable that a Government could be hamstrung by failing to get a majority in the House of Commons and could not get their programme through. I believe that there should be restraints on the improper use of the power to dissolve. We are all agreed that it should not be the sovereign and there are dangers in it being a resolution of the House of Commons. That is why I will argue for the removal of Clause 3 so that in the last resort there can be resort to the courts.
My Lords, the removal of Clause 3 would be the second-best option. The noble Lord, Lord Butler, knows that I was sympathetic when he raised this point at Second Reading. Like my noble friend Lord Howard, with whom I frequently agree but not today, I apologise for not being here in Committee. I was attending a farewell dinner for a friend who had given some 20 years’ service in his post and I felt that, as I had spoken at Second Reading, I could reserve what I wanted to say for Report. I strongly support what the noble and learned Lord, Lord Judge, said, in his balanced, measured and eminently sensible speech To give unfettered power to any individual is a very serious thing indeed. I believe that it is important that this House today gives the other place an opportunity—an opportunity that it did not take when the Bill was with it. It is important because things have moved along quite a lot, not least with the intemperate, frankly bullying and certainly unconstitutional threat of Mr Rees- Mogg, which was one of the worst utterances that I have heard in my 50 years in Parliament from any leader or indeed any senior Minister of the Crown We know—I know from personal experience—that you do not need a general election if there is a change of Prime Minister. Harold Wilson resigned in 1976 and was replaced by Jim Callaghan. The election in which Mrs Thatcher had her triumph came three years later. Mrs Thatcher retired—or left—and was replaced by John Major without a general election. David Cameron, contrary to his promise to carry on, a few hours after the referendum result indicated that he was going and was replaced by Mrs May without either a general election or a party election for a leader. Those are historic facts. I believe that it is very important that the House of Commons should have a say in this I agree very much with what the noble Lord, Lord Grocott, said about the Fixed-term Parliaments Act and I bid it farewell without any sadness. Although my noble friend Lord Howard is right in a theoretical sense that of course anything can happen—we can all think of extreme things happening—I honestly do not believe that it is at all likely that you would not get a majority in the House of Commons, perhaps a slender one, one way or the other.
My Lords, the noble Lord, Lord Howard, raised a concern that there might be a Prime Minister who is unable to govern and to secure a majority for a Dissolution. There is a constitutional solution to any such problem, should it occur—that such a Prime Minister should resign and let someone take over who is able to command a majority in the House of Commons.
My Lords, the House does not need or want a history lesson, but over hundreds of years power has been reclaimed from monarchs by Parliament and the necessary transfer of power from Prime Ministers to Parliament. There is an imbalance in the balance of power between the legislature and the Executive, but it turns out that repealing the Fixed-term Parliaments Act 2011, which I think everyone in this House agrees should go, is more difficult than was imagined. We are an unelected House, but I can think of no better use of my vote today than to vote for Amendment 1 and allow the House of Commons to consider the matter properly and to reach its view, as the noble Lord, Lord Cormack, said. People disagree as to the nature of future constitutional circumstances but I am very proud of the fact that I have a vote that can send this amendment to the House of Commons and I, for one, will be content with whatever the House of Commons decides it wishes to do.
My Lords, I oppose this amendment. How beguilingly it is put. What could be more tempting than simply to say, “Vote in favour and all you are doing is giving the House of Commons another opportunity to discuss it”? We really ought to consider whether the case in favour is sufficiently powerful to take that unusual step, tempting as it may be. It is certainly not every day of the week that I find myself in agreement with the noble Lord, Lord Howard, and I agree, too, with my noble friend Lord Butler that this solution to the problems that have been identified today is not a good one I respectfully remind the House that although the matter took only a little time in the House of Commons, the Fixed-Term Parliaments Act Joint Committee pointed out in paragraph 86 of its careful and thorough report that there was only a minority in favour of giving the House of Commons by Motion a veto over a proposed Dissolution, as this amendment would do. It ended: “The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.” Of course I recognise that, under this proposed amendment, a two-thirds majority would drop to 51%. However, as the noble Lords, Lord Howard and Lord Butler, pointed out, a hung Parliament could well reproduce the sort of stasis and chaos at which we arrived back in the summer of 2019 I do not pretend to agree with the noble Lord, Lord Butler, on the next amendment, but this is a different point entirely. Given that, there should be a guardian against the sort of abuse that the noble Lord, Lord Grocott, suggested could occur in the way of the prime ministerial prerogative of Dissolution; I suggest Brenda of Bristol.
My Lords, I am not quite sure I know how to follow that last remark. I have put my name to this amendment for the reasons so eloquently given by the noble and learned Lord, Lord Judge. Like him, I carefully read the considered and lengthy response of the noble Lord, Lord True, to the equivalent debate in Committee. The noble Lord set out to make our flesh creep about the consequences of this amendment. I shall deal with three of his arguments, one of which has already been dealt with today. First, the noble Lord said that, if this amendment were passed, the chance of zombie Parliaments would remain high. As we have already heard, the last Parliament was a zombie Parliament to the extent that the Fixed-Term Parliament Act requires a two-thirds majority. Without that, it would not have been. The noble Lord, Lord Howard, said, “Ah yes, but there will be other circumstances in which such a zombie Parliament could obtain”. The noble Lord, Lord Pannick, has explained the first next step if a Prime Minister were unable to win a majority. I think that the noble Lord, Lord Howard, is asking us to entertain as plausible the possibility that, if nobody could form a Government, Parliament would decide that it wished to continue in existence without there being a credible Government. This is completely implausible to me. I cannot foresee circumstances in which such a situation would obtain for more than a very short period—a day or two at most. The noble Lord did not set such circumstances out. I do not believe that this amendment makes zombie Parliaments more likely Secondly, the noble Lord, Lord True, said that the amendment is “dangerously silent” on the status and practice of the conventions associated with confidence. Of course it is silent on the convention because conventions are not law. In the case of a Motion of no confidence having been passed, it seems blindingly obvious that, at that very minute, there would be a vote under the Act, as it would then be, to call an election. I cannot see circumstances in which that would not happen. The fact that conventions are not mentioned in this Bill is impossible and largely irrelevant Thirdly—and most extraordinarily—the noble Lord, Lord True, argued that this amendment, if passed, would deny or “overturn” the votes of millions. What on earth does that possibly mean? When millions vote, they do so in the expectation that there will be a full term of Parliament. During the course of a Parliament, they may or may not at any particular time wish that there were another election. As it happens, today, I suspect that most people would be rather glad to have an election, but that is not the way the constitution works. Parliament is elected for a period. If that period is to be truncated, the authority for truncating it rests with Parliament. The people have no say in whether to have an early election under our constitution, and the Government are certainly not proposing that, so the argument that, somehow, the amendment would frustrate the votes of millions is completely misplaced It comes down to a simple question: where should the ultimate source of power in our constitution rest? This was the question which the noble and learned Lord, Lord Judge, posed. We contend that it should be with Parliament and not the Executive. We contend that the steady accretion of power to No. 10—which, to a limited extent, has been further added to by the decision of the Prime Minister to set up a prime ministerial department— is not good for democracy. The amendment is one small way of reversing that trend.
My Lords, I apologise that I was not present during Committee When I was a student, a young person doing A-levels in Uganda, there was a question: “How are the people of the United Kingdom governed?” The book said, “The people of the United Kingdom are governed by the Queen in Parliament under God”, and went on, “and the sovereign is Parliament.” If Parliament is the ultimate authority, to deny it the possibility of agreeing to the Dissolution of Parliament seems bizarre. If it is not, who has the ultimate authority? The noble Lord, Lord Howard, said that the Government could be paralysed and could not govern, but governance can happen only if those in the Executive are accountable and transparent to Parliament. If they are not, we are creating a body of people who think they are not answerable for their decisions to Parliament—that they are the ones who give it legitimacy. They may find themselves paralysed because, for whatever reason, they cannot obtain a majority. We heard that lady in Bristol when the election was announced in 2017. She said, “Not another election!” People are fed up with ad hoc solutions that often do not help I support the noble Lord, the Convenor of my group, who has provided a simple solution. If the Government cannot obtain a simple majority for Parliament to be dissolved, so be it. As for the calling of elections regardless because you are not getting your legislation through, well, if Parliament is objecting and it is sovereign, it requires a bit of humility to say, “We did not get it this time; maybe next year.” I plead for this simple amendment, which would resolve all the problems that the noble Lord, Lord Howard, talked about—of the power of the sovereign and the power of the courts. Of course, the courts will intervene if something illegal has been done. Do noble Lords remember the Brexit question, when there was a desire that it should be done through the royal prerogative, the old King Henry VIII powers? The court said, “No. The act to enter into these negotiations was an Act of Parliament, and if you want to do away with it, it is Parliament that must consent for that to be done.” That was when the courts intervened, by the way I, for one, support this simple way to resolve the problem that the Fixed-term Parliaments Act created, but we surely cannot go back to the power of the Prime Minister as if Prime Ministers are not accountable to Parliament: they are.
My Lords, first, I apologise that I was not able to speak in Committee. I did, however, read the very interesting debate, and I am extremely sorry to say that I find myself at odds with the noble and learned Lord, Lord Judge. I think he and I wholeheartedly share a concern about the creeping, stealthy growth in the size of the state and of the Executive. I have spoken on this before and I will always stand up with him to oppose it Also, I fear that I am taking on my former boss, my noble friend Lord Lansley, on this matter. Listening to them, I feel, as the noble and learned Lord, Lord Brown, said, that they are making some very beguiling arguments. As we have just heard, what is being suggested in the amendment sounds very simple. We could be in The Jungle Book, facing Kaa and his big eyes: it is a simple, big thought that we can just introduce this amendment and all will be well.
My Lords, I apologise for not having attended previous debate on the Bill, but I want to make just two simple points. First, it is not true that the problems of the Fixed-term Parliaments Act were not foreseen. They were foreseen and explicitly raised by many Members on this side of the House. Secondly, however, the noble Lord, Lord Bridges, has encapsulated the difference between the two sides of this argument. In particular, I ask him to reflect seriously on his statement that we want power flowing from the ballot box to the Executive. That is completely contrary to the constitution of this country. Indeed, not only is it contrary to that, but it is enormously dangerous, because any system—
What I want is a system where, if the Prime Minister wishes to call a general election, that election happens and we get to the situation in which we can trust the people. That is where I wish to see the power flowing.
Out of courtesy to the noble Lord, I will check the record, but my distinct recollection was that he said that we want a system where power flows from the ballot box to the Executive. Not only is that contrary to everything we believe, by omitting Parliament in the middle of it, but it is the basis of every bad dictatorship that Europe has produced—referendums and power flowing from the ballot box to the Executive. That is the extreme case or course, but it is, in essence, precisely the difference between the arguments on the two sides today, in which we believe that on major issues, which now in the British Parliament include the declaration of war, the people who should make the decision at the end of the day are those in Parliament, not the Executive. All the power that the Executive receives is because they can control or, rather, call on a majority in Parliament. Should the Executive cease to have the confidence of Parliament, whether on policy, war, peace or the Dissolution of Parliament, the Executive cannot proceed unless they can change the mind of Parliament. That is a simple argument that applies to the most important things that Parliament can decide. I would argue that the Dissolution of Parliament is one of those issues.
My Lords, this is the third time in your Lordships’ House that we have had a debate focused on this issue. At Second Reading, it was a key issue, as it was in Committee. It comes down to a fundamental point. In the other place and, indeed, in your Lordships’ House, Ministers asserted from the beginning that bringing in this piece of legislation takes us back in some kind of parliamentary TARDIS to the status quo ante whereby we return to exactly the position that we were in before the Fixed-term Parliaments Act. However, in Clause 3, that argument is completely undermined by saying, “But just in case we haven’t got it right, we are going to have a clause that avoids any legal action”, and the so-called ouster clausem Clause 3. So the Government are not confident that the Bill without the ouster clause returns us to the position that we were in before The fundamental point, also made by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley, is that there is a choice. Do we accept on the calling of an election executive authority or parliamentary democracy? The huge flaw in the argument of the noble Lord, Lord Howard, is that he seems prepared to trust Parliament on every issue—matters of life and death, legislation and whether we go to war—but not on whether there can be a general election I heard the comments of the noble Lord, Lord Bridges, in exactly the same way as my noble friend Lord Reid. I wrote them down. He seemed to want to make a major constitutional change where power flowed from the ballot box to the Executive. The fundamental basis of our democracy is that power flows from the ballot box to the elected Chamber of Parliament, the House of Commons, and that the Government derive their authority from that House and are responsible to it On the point made by the noble Lord about denying the people a vote—that somehow, if the House of Commons were to vote not to have an election, we would be denying the public an opportunity to have their say—he is not correct, but is right on one point. In effect, there is a fixed or maximum term, in which it is not open to the House of Commons, the Prime Minister, or anyone else to never have an election. There is an end term to any Parliament, by which time an election must be held. It is not simply fixed in time. The argument is that previously the Prime Minister would be expected to go to the monarch. I doubt any of us wish to return to the situation where one puts the monarch in such controversy. We are all scarred by the unlawful Prorogation and how the Government behaved on that. It comes back to this point: do we have executive authority or parliamentary democracy in calling an election? There is nothing more basic for the House of Commons than that objective. Offering the other place an opportunity to vote on this issue avoids the need for Clause 3. The idea that the courts would involve themselves in a decision of Parliament to hold a general election is fanciful. This is an elegant and correct solution of this issue The noble and learned Lord, Lord Judge, referred to the issue of the former Leader of the House of Commons, Jacob Rees-Mogg, threatening MPs that if they failed to support the Prime Minister, the Prime Minister could call an election. If we are talking about hypothetical circumstances or crises that could occur again, that is certainly one, and should be guarded against at all costs, by not placing the power in the hands of just one person. We should not be surprised by such threats; noble Lords may recall that the current Leader of the House, early on in his parliamentary life, threatened your Lordships’ House with 1,000 extra peers if we failed to pass a piece of legislation he supported. Perhaps threats come quite easily to him We had a lengthy debate on this, which the noble and learned Lord, Lord Judge, summed up well at the beginning. When this was debated in the House of Commons, there was no lengthy debate, and there is an opportunity for them to reconsider this. When we debated it in Committee previously, my noble friend Lady Taylor said that she was surprised that the House of Commons gave away that power so easily. It may be because it did not discuss it in any great depth or with consideration. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Joint Committee was divided on the issue of whether it was appropriate or not. It is entirely appropriate that the House of Commons is given the opportunity to consider this again I come to one final point, which is that the noble Lord, Lord True, said at both Second Reading and in Committee that the Commons had not amended the Bill, so your Lordships’ House should not do so either. Last night, this House sat beyond 3 am, which is unusual. Today, to facilitate business, we are sitting at 11 am, on a much longer day. If it is not the duty of this House to pass amendments that the other end can consider, then what is the point? The amendment has our full support and I urge noble Lords to vote for it.
My Lords, the request for a dissolution is perhaps the ultimate act of humility by an Executive. It is placing all that has been lent, first by the electorate, and then by Parliament, in the hands of the British people. That is the underlying thought behind what my noble friend Lord Bridges of Headley said, in what was a significant and important speech, as was the speech of my noble friend Lord Howard of Lympne.
I am sure the Minister is aware that the House of Commons spent less than two hours in Committee, on Report and on the final stages of this Bill—so to say that it gave it considerable attention would I think be a slight exaggeration.
My Lords, your Lordships are required to deal with the Bills that are sent to us by the other place, and the other place has sent us a Bill with no such provision. Members of your Lordships’ House under the chairmanship of my noble friend Lord McLoughlin on the Joint Committee, which reflected at length on these matters, did not propose such an amendment. None of those who have scrutinised the legislation formally have proposed what the noble and learned Lord has suggested The noble and learned Lord said that we could not return to an ancient system. There is perhaps a faint irony in advancing that argument in an unelected House with a tradition that dates back centuries. He said that we had to be 21st century. Well, we tried “21st century” in 2011 and, frankly, I rather prefer the experience of many decades in the long past which I believe served us well, and the proposition before your Lordships, supported by my party and the party opposite at the general election, was that we should do away with the failed 21st-century experiment We do not have to talk the talk about the problems that a Commons vote might cause. There has been a lot of speculation, to and fro, on this, but we lived it in 2017 to 2019; that Parliament refused three times to be dissolved and to meet the verdict of the people The repeal of the Fixed-term Parliaments Act was in our manifesto and that of the party opposite. I found it fascinating to hear the throaty roar of approval from the Benches opposite when any noble Lord, starting with the noble and learned Lord, Lord Judge, said that we must not go back to the situation before the Act was passed. I remind the party opposite, as did my noble friend, of the Labour Party’s promise to the people: “A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments” They wish to maintain an essential part of that Act in the form of a Commons vote.
Can the Minister give one example of a spokesman from this side saying that we wish to retain the Fixed-term Parliaments Act?
I fear I must say to the noble Lord, who I greatly respect and admire, that I simply stated a feature of the Fixed-term Parliaments Act that the party opposite wishes to retain: that there should be a Commons veto on Dissolution. That is what I said, and that is a fact. If the party opposite votes for this amendment, it will be voting for a House of Commons veto potentially on its own Dissolution—it is written there in the book.
If the Minister is going to give us a history lesson on how people have acted and voted, could he remind us how he and his colleagues voted on the Fixed-term Parliaments Act?
My Lords, I promised I would look up my personal record on that Bill. I have not done so, but I would be surprised if my name featured very heavily. Anyway, it is being done away with now, and I think the noble Lord and I agree that it should be done away with, whatever follows A vote in the House of Commons has created paralysis in a number of contexts and could create paralysis in many contexts. Some noble Lords have spoken on this, including my noble friends Lord Bridges and Lord Howard of Lympne, and the noble and learned Lord, Lord Brown. There could be minority Governments or situations where parties, Parliament or the nation have divided The kernel of the argument put forward by the noble Lord, Lord Grocott, and others is that their approach offers simplicity. In fact, it adds a complication to a Bill which is simple. Without going over the same ground, we saw that painfully in 2019, when the Labour Party was three times presented with the opportunity to force an election, and Mr Corbyn thrice denied the election to the Prime Minister and the British people by sitting on his hands. So do not tell me that there cannot be circumstances in which an Opposition would seek to prevent a general election. We have lived that system and I believe that my noble friend Lord Howard of Lympne, and indeed the noble Lord, Lord Butler of Brockwell, were absolutely right to warn that these circumstances could recur In Committee, I set out the negative consequences for the fundamental conventions on confidence. Simply put, the privilege to request that the sovereign exercise the Dissolution prerogative is an executive function enjoyed by virtue of the ability of the Government to command the confidence of the Commons. Our contention is that this simple process should not be unduly constrained by the type of process that the noble and learned Lord puts before us; it could be disruptive and unhelpful at times when expediency is essential.
I am grateful to the Minister for giving way. He is talking about the use of executive powers. Is he concerned—I assume he is, because of Clause 3—that the courts might get involved in this and that that could cause serious constitutional conflict? Surely if the amendment proposed by the noble and learned Lord, Lord Judge, was accepted, that would reduce the need for the ouster clause in Clause 3?
My Lords, I do not think it is an either/or question. If I may use a phrase that was once popular on the Benches opposite, there is third way, which is to have neither of those amendments and to return to the simple and proven practice of the past When we send an amendment to the other place, we are always adjured to be careful what we send and to show how we reflect and are thoughtful. I would like to consider some of the practical working of the proposition that the noble and learned Lord puts before us. There is little about that, despite its immense significance potentially for our constitution, and indeed its reversal of the Government’s manifesto commitment to repeal the Fixed-term Parliaments Act. For example, the noble and learned Lord proposes that there should be a Motion that “this present Parliament will be dissolved.” How would this parliamentary process be sequenced and when would it apply? How would it relate to confidence? Would it also apply following a loss of confidence? Would a Prime Minister have to go for a further Motion? Could anyone put before the House of Commons the Motion proposed by the noble and learned Lord, or would it be only the Prime Minister and the Treasury Bench? If the Motion is passed, is the Prime Minister bound to seek a Dissolution—for example, a sudden tactical alliance could trigger a general election—or could he seek to retain the confidence of the House of Commons? Even if there were such a Motion as the noble and learned Lord has proposed, when would the Prime Minister have to dissolve Parliament In even more extraordinary circumstances, given such an amendment, could a Government procure such a Motion on the first day after the end of the debate on the gracious Speech? Could they pass such a Motion “that this present Parliament will be dissolved”, and then wait for the rest of the Parliament? After all, it says “will”; it does not say “when” These questions are practical and unanswered. I submit that it is not a responsible role for a revising Chamber to send this amendment down to the elected Chamber with none of those issues worked through. They were carefully considered by the Joint Committee, which arrived at a conclusion. This is constitution-making on the hoof.
Oh!
It is the launching of a ship of uncertainty in which many questions are unanswered.
I find the noble Lord’s comments quite offensive. He is suggesting that it is inappropriate for your Lordships’ House, having debated this issue for significantly longer than the other place, to suggest an alternative. That is perfectly reasonable and normal. The arrangements that he says should be in place are in the Bill. They are also untested, because it does not return us to the situation as before. I ask him to be a bit more careful in his choice of words and his attitude to the House discussing such issues.
My Lords, I reject those remarks—in a friendly manner, of course. I do not think it is in any way offensive for a Minister at the Dispatch Box, or any other Member of your Lordships’ House, to put to noble Lords that there may be practical difficulties and things that are lacking in amendments proposed before the House We are often told that we should proceed with the utmost care in constitutional change; I agree profoundly. “Further and mature reflection” was the phrase I noted from the noble and learned Lord, Lord Judge; I agree. The Bill had extensive pre-legislative scrutiny. This option was not recommended. The majority of the Joint Committee, on which your Lordships are represented, considered that it would be, as was quoted by the noble and learned Lord, Lord Brown, contrary to the public interest. With that advice, and with the utmost respect, I do not think that hasty ping-pong between the two Houses qualifies as utmost care for making a substantial constitutional provision, against what the Joint Committee recommended. I submit that that is not a prudent approach. For that reason, I hope that the noble and learned Lord, Lord Judge, and others will reflect on the wisdom and practicality of the amendment There is a final fundamental point. The creation of statutory constraints would cut against and under- mine the flexibility that characterises the pre-FTPA arrangements that the Government want to reinstate, as they have promised. Generations of proven practice underlie those arrangements, but they were junked for what we all know was a short-term political expedient in 2011. I do not share the attitude of some to past experience—that we cannot return to the past and apply its wisdom again. Again, I submit that we can For all those reasons, I urge noble Lords not to press the amendment. It is defective in practice, leaves a host of very hard practical questions unanswered, and risks recreating the conditions of the very paralysis we all lived through so recently, about which we all told ourselves we would never want to see again. We should not risk returning to that. We should reflect on the wisdom of ages and take pride in our constitutional practice over generations before 2011, and reject the noble and learned Lord’s amendment.
My Lords, we have probably talked too long already, but I find it wonderful to think that my arguments have been described as “beguiling”—that was my old friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He has reminded me of the days—our boy days—when we used to go round the county courts. He would always do it, every time: he would get up and say to the judge, “Mr Judge has made a very powerful argument,” or “a very remarkable piece of advocacy” or whatever it might be, and then he would punch me straight between the eyes and say, “But he is wrong”. Beguiling arguments have their strengths. They are beguiling because they are soundly based And then, I have just heard the noble Lord the Minister create a whole series of fences. It is like Becher’s Brook every time as we go around the course. The point of this amendment is for the issue to go to the other place and for the other place to consider it and decide whether those hurdles are ones that can be overcome or not—to decide which way it should go.
Does the noble and learned Lord set at naught the recommendation of the Joint Committee of your Lordships and the other place which considered this proposition, rejected it, and cited it as contrary to the public interest?
There was a majority in favour of the proposition that the noble Lord the Minister has put forward. I happen to think that the minority was right. I am inviting us to let the House of Commons have another look and make its own mind up. They will take into account the decisions, recommendations and all the papers that they are given, I hope, and come to their own conclusion What I did find slightly startling about the noble Lord the Minister’s response was the idea that when a Prime Minister seeks a general election, that is an act of deep humility. It is not. It is an act by an individual in power who is seeking the best possible way of retaining power. Elections are not sought in the public interest; they are sought for the advantage of the party in government. Humility has nothing whatever to do with it Finally, I want to raise a serious point. I find the idea—it has been espoused by a number of noble Lords—that we should stop any risk of the elected House acting as zombies. What an insult that is being paid to the elected Chamber by this House. Of course, the House will get things wrong—every House, every institution, gets things wrong. But the idea that we are going to suddenly be frozen in a situation which is incapable of movement and the Government will be paralysed and things will not work and the electricity will be turned off, all because the Commons has decided to reject a Prime Minister’s desire for a dissolution is, with great respect, bunkum. I do not propose to withdraw this amendment. I seek the opinion of the House.
My Lords, on the assumption that the Government invite the Commons to disagree with the amendment we have just passed, I move Amendment 2 and speak to my other two amendments in this group. I pursued these in Committee and believe their importance is such as to merit returning to them on Report As I argued in Committee, the provisions of Clause 3 that are covered by my amendments conflict with the Government’s aim to restore the constitutional position to that which existed prior to the enactment of the Fixed-term Parliaments Act. They are also objectionable in principle. It is this point I wish to pursue In Committee, the Minister, my noble friend Lord True, sought to justify both the use of “purported” and the inclusion of paragraph (c). He advanced a “thin edge of the wedge” argument: the clause is necessary because “the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.”—[Official Report, 25/1/22; col. 233.] The courts are viewed by the Government as having encroached in certain cases on the exercise of the prerogative where vested in Ministers. Because the courts have gone beyond what the Executive wished, they wish to prevent them straying further in respect of the Dissolution of Parliament. As my noble friend emphasised, the use of “purported” is to make it plain that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework My contention is that the fear underpinning the provision is unfounded. The cases cited by my noble friend are not sufficient to show that the courts would ever go near the exercise of the prerogative where the Dissolution and calling of Parliament are concerned. As my noble friend reminded us in Committee, Lord Roskill said, in 1985 in the GCHQ case, that the Dissolution of Parliament was “not susceptible to judicial review” Indeed, Lord Roskill identified what he referred to as “excluded categories”, comprising prerogative powers that by their “nature and subject matter” were “such as not to be amenable to the judicial process.” These included “the dissolution of Parliament and the appointment of ministers” I regard the powers not exercised on advice as the ultimate excluded categories In Committee, I moved an amendment to put on the face of the Bill that the prerogative power to dissolve Parliament and call an election was a personal prerogative power of the monarch, not exercised on the advice of Ministers. There would therefore be no advice for the courts to consider. The prerogative powers not exercised on advice are such as to put them in a class of their own as there would be no purported exercise or purported decision. If the personal prerogative is revived, the use of “purported” has no relevance. This is not addressed in the letter from my noble friend Lord True to the noble Baroness, Lady Smith of Basildon If the argument is that the prerogative is now a statutory power and that is the route through which a challenge may be mounted, the problem with the use of “purported” is that it enables Ministers to go beyond their powers. Let us be clear as to the meaning of “purported”: it means that something has been stated to be true or to have happened, even though that may not be the case. My noble friend Lord True argued that the use of the word would not constitute a precedent—we have seen evidence already this week of its use in another measure—but I am not persuaded that it is desirable in principle to embody such a provision in statute. As he said, it may be a bespoke solution, but it is a bespoke solution in plain sight. It is constitutionally objectionable, as potentially it conflicts with the rule of law. That should concern us all. It should certainly concern everyone on this side of the House. It is a fundamental tenet of Conservative belief that institutions are subject to the rule of law, which regulates definitively the relations between citizens and applies equally to the governors and the governed. A stable social order is dependent on the maintenance of the rule of law Furthermore, there is nothing to suggest that the courts would ever wish to entertain interfering in the process given the repercussions that my noble friend Lord True outlined in Committee. Those scenarios would be as unpalatable to the courts as they are to your Lordships. As he recognised in Committee, there are political checks and balances at work, and, where there are, the courts stay clear. That was apparent in respect of the so-called Sewel convention, when the Supreme Court declared that “policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary.” The provisions before us are unprecedented. As the noble and learned Lord, Lord Hope of Craighead, said in Committee, the objection is to the use of “purported” and the words in paragraph (c). As he made clear, there is no objection to say that the court or tribunal may not question the powers referred to in Clause 2 As I said in responding to the debate in Committee, when my noble friend Lord Faulks argued that the clause was necessary to keep the courts out of politics, I take the view that the clause, or rather the words that I seek to delete, are designed to keep the courts out of the law. Take out “purported” and paragraph (c) and the problem is solved. One is then keeping within, and indeed promoting, the rule of law The provisions of the clause cover a situation that is so unlikely to ever occur for the reasons I have given—indeed, if it is a personal prerogative power of the monarch, it cannot occur—that it does not justify conferring powers that are so objectionable. The remoteness of it ever occurring is such that it would be better to wait and deal with it at the time. The doctrine of parliamentary sovereignty is not in doubt. As the late Lord Bingham argued, it is immanent in our constitution. As one of the measures being repealed by this Bill—the Early Parliamentary General Election Act 2019—demonstrates, Parliament can move with some speed to achieve the outcome it wishes. That is beyond doubt. There are precedents for Parliament enacting within 24 hours a Bill to overturn a court judgment Parliament by the very doctrine of parliamentary sovereignty is entitled to enact the provisions of this clause. What it can do is not necessarily what it should do. Retaining the purported exercise of powers and any purported decision within the clause, along with paragraph (c), is either redundant or it clashes with a basic tenet of the constitution. If the latter, it is objectionable in principle and unnecessary in practice. I would hope that a Conservative Government would take the high road and accept these amendments.
My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is “legislating against shadows, against figments of the imagination.”—[Official Report, 25/1/22; col. 227.] I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment. We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation “against shadows”, but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.
My Lords, I supported these amendments in Committee and I should like to do so again today. I cannot help feeling that there is just a hint—as the noble Lord, Lord Lansley, put it earlier—of the generals fighting the last war, because it is very obvious why Clause 3 is there: it is to head off what was seen to be a trend at least in the decision in Miller 2 I will make two points, if I may. First, following my noble friend Lord Butler of Brockwell, I agree that the clause is unnecessary. One of the things that was said by the Supreme Court at the beginning of Miller 2 was to distinguish the Prorogation issue with which it was concerned and Dissolution. It was made quite clear in a very few words at the start of that decision that decisions about Dissolution were nothing to do with the courts. The noble Lord, Lord Grocott, made that point very clearly when he said that this is the most political of decisions that could be taken. That is a very clear warning to the courts that it is nothing to do with them. It is unnecessary, because I cannot see the courts engaging with a Dissolution issue in addition to the points made by the noble Lord, Lord Norton The second point that I would like to say a little more about is the unwise precedent. The problem here is that the language of paragraph (c) in Clause 3 removes entirely from the courts the possibility of determining the limit or extent of the powers. The reverse of the coin is that it is the Executive who are the determination and who decide the limit or extent of their own powers. Earlier today, the noble Lord, Lord Reid of Cardowan, said that this was the basis for a dictatorship. My noble friend Lord Butler referred in Committee to a number of examples not very far away from us in Europe, where there is perhaps a trend moving towards that. We have to be extremely careful not to give a signal to a Government that they can get away with an exclusion clause of this kind. The question is how far the clause should go, and it is paragraph (c) of Clause 3 that is completely objectionable, leaving it to the Executive to determine the extent and limits of their own powers The question of precedent is worth dwelling on. I admire greatly the skills of the parliamentary draftsmen. They have their own skills and traditions, one of which is that they are very determined to follow precedent in the way in which they engage with legislation. This has great value, because it means that there is constancy in the way in which issues are expressed in our legislation, which is of a very high standard. My concern is that, whatever may be said today about this not setting a precedent, it will nevertheless be there in the books, and the draftsmen will, some years ahead, say, “That is what was done in 2022. It is an example that we can follow.” That is danger that I fear in this clause, which is unnecessary. It is unnecessary, so we should not risk the creation of a precedent that, in future years, we may deeply regret.
My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.
My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.
My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported” It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.
My Lords, I suppose I should declare a professional interest in the possibility of Miller 3 I support the amendments in the names of the noble Lords, Lord Norton and Lord Butler. I do not suggest that the courts would today never entertain a judicial review in relation to Dissolution. The noble Lord, Lord Norton, mentioned the words of Lord Roskill in the GCHQ case in 1984—the law has moved on a long way in the nearly 40 years since then. Like other noble Lords, I find it very difficult to envisage a case in which the courts would entertain a challenge to the Dissolution of Parliament and the calling of a general election. However, I support the amendments because I think it would be wise, in this context, to proceed on the basis of never say never One of the vices of a provision such as Clause 3 is that it seeks to remove the possibility of the court exercising jurisdiction, however exceptional the circumstances may be or however grave the abuse of power by a future Prime Minister. I would much prefer to leave it to the judgment of a future Supreme Court whether the circumstances then existing justify exceptional judicial involvement and whether there is an abuse of power, rather than confirm a blanket immunity from legal challenge whatever the circumstances. I also agree with the noble Lords, Lord Butler and Lord Norton, that there is a point of principle here: the Prime Minister would be exercising a very important power. It is wrong in principle that there should be an immunity from the rule of law—it is a very basic principle. That principle does not depend on whether the noble Lord, Lord Faulks, is correct in saying that, as a matter of description, this is or is not an ouster clause. What it purports to do is prevent the court saying, “What you have done is unlawful”. We should not be allowing the exercise of public powers to enjoy such immunity as a matter of principle We then have the argument the noble Lord, Lord Faulks, deployed, and which was raised in Committee, that the mere existence of this possible jurisdiction to entertain a judicial review may cause delay, expense or inconvenience. That seems to me to be entirely unrealistic. I looked to see whether there have been any cases analogous to the possible cases we are talking about. There is one. The Press Association reported on 8 April 1992, the day before the 1992 general election— won by John Major—that on 7 April, the day before, Mr Justice Macpherson had considered and rejected a judicial review application which was made by a Mr George Barnes, who was seeking to stop the 1992 general election going ahead. Mr Barnes was aggrieved by the manner, as he put it, in which the main political parties had chosen their candidates.
I am sorry to interrupt the noble Lord in the middle of his flow, but I think his point was that the law has moved on greatly since Lord Roskill. So does not citing a decision from 1992 rather defeat his own argument?
No, because my point is that hopeless or frivolous applications will be dealt with speedily by the courts. This was plainly an application with no merit whatever, and my noble friend’s point, as I understood him, was that the mere existence of the jurisdiction could cause delay. I am giving an example of how the courts then, and today, would deal with a frivolous application The judge decided, unsurprisingly, that this was not a matter for the courts and that there was no basis for the application. The general election went ahead and it was entirely untroubled by the litigation. There was no delay, expense or inconvenience. The court dismissed a hopeless application speedily and effectively, as it usually does. For all these reasons, if my noble friend Lord Butler wishes to test the opinion of the House, he will have my support.
My Lords, I too attempted to darn this Bill in Committee and, indeed, spoke at Second Reading, and I too am opposed to this group of amendments. My core concern here is to safeguard my successors on the Bench and to avoid the risk of constitutional crisis, which would arise were there to be some future attempted legal challenge not as frivolous as that just indicated by the noble Lord, Lord Pannick, but something dressed up as an altogether more coherent attack on a Dissolution, such as the noble Lord, Lord Pannick, himself would be adept at managing. Unlike the noble Lord, Lord Howard, but in common with the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Beith, I do not think for an instant that the courts would ever actually reach the point of upholding such a challenge, even though, as the noble Lord, Lord Pannick, also says, things have undoubtedly moved on since the CCSU case. That, as it happens, was my very last case at the Bar, decades ago. Although it is very unlikely that such a challenge would succeed, it is very important to put in the Bill a provision that would provide the greatest possible discouragement to any mischievous person, instructing whosoever it may be, contemplating a challenge Clause 3 seems to me to be admirable for that purpose; it enables the courts to say, as Mr Justice Macpherson—a very old friend of mine, with whom I shared a room in chambers for decades—said in that case, “Chuck it out without more ado.” That is really the point made by the noble Lord, Lord Trevethin and Oaksey. That is the practical effect of Clause 3. It is not there, I would suggest, as revenge for Miller 2; nor does it—and this is the point made by the noble Lord, Lord Faulks—create a risk that this will be a template or precedent for the future. Its relevance here is purely in the context and to underline the fact that Dissolution is essentially a prerogative act, preserved even since CCSU. We should leave it there, discourage prospective litigants and reinforce the courts in a robust rejection of any attempt that would delay and disrupt, to some degree, a Dissolution process. Leave it there.
My Lords, the noble Lord, Lord Butler of Brockwell, was kind enough to quote me from when I spoke in Committee on this. I want to underline that what I said was: “I cannot conceive of any circumstances in which the involvement of the courts could ever be justified”.—[Official Report, 25/1/22; col. 227.] That is the important point. What Clause 3 is trying to do is to put this question beyond doubt Without Clause 3, we potentially do not rule out the courts trying to get themselves involved in challenging the use of the royal prerogative, doubtless with the help of very clever lawyers such as the noble Lord, Lord Pannick. Indeed, in the noble Lord’s remarks just now, he rather wanted to keep the door open for noble Lords such as himself to encourage the courts to get involved in cases such as the use of the royal prerogative Our understanding before the introduction of the Fixed-term Parliaments Act was that the courts would not get involved in the use of the royal prerogative. Since then, there have been some surprising judgments—perhaps not surprising to the noble Lord, Lord Pannick—such as Miller 2, which have made many people doubtful about whether or not the settled understanding of where the courts would go was indeed that settled. That is what the noble Lord, Lord Pannick, has underlined for us today.
My Lords, as a layman and an unashamed politician, I want to make a couple of layman’s/politician’s observations in what has been a largely legal argument Much of this discussion—in fact, the whole of this Report stage—has been considered with the ghost of the 2017-19 Parliament at its back; the cloud over us, one could say. It was a very unfortunate Parliament—in the past I have called it poisonous—and we need to be careful about drawing all sorts of long-term constitutional conclusions from that period. This relates to my observation on the debate about the ouster clause: it is, as others have said, trying to solve the problem of Miller 2 To me, as a layman, Miller 2 did present some problems. One is unarguable—and I am cautious about saying that—in that it did massively involve the courts in an intensely political situation. I know it tried to give disclaimers in its judgment, and all the rest of it, but I can tell you, as a politician, it is hard to imagine a more intense, political, biting debate than the one that existed in relation to Britain’s membership of the European Union, and the courts went slam dunk right into the middle of that debate. In my view this is not a good precedent I would also say—and I am sure I will be stopped if I trespass here—that it involved the courts in arguments which I know are legal arguments, doubtless very good legal arguments, but they do not make much sense to the layman. Part of the Miller 2 judgment was to say that the Prorogation had not happened. Although I understand the lawyers’ argument for saying so, it does not make much common sense to an observer. It is like saying that the sun comes up in the morning, and it is up there now, but the law says that the sun has not risen. I say, “Look, it is up there now,” but the law says it is still where it was before. That kind of ugly language and reasoning is—at least to me—something that we do not want to see employed too often. It is employed in the Bill itself; it is as though the Fixed-term Parliaments Act 2011 had never happened, but both those things—the Act and, unfortunately, the Prorogation —had happened I simply make the following observation. If I am right that we want to make things intelligible to both lawyers and non-lawyers, if I am right that 2017-19 was a really bad patch, and if I am right in saying that we really do not want the courts—however exceptional it might be—telling the people when they can and cannot have a general election, then I have offered a solution. I am sorry I keep coming back—actually I am not going to apologise at all, because it is right—to the amendment by the noble and learned Lord, Lord Judge. If only the House of Commons would apply its mind to the arguments that have been deployed in this House during the consideration of previous amendments, that would solve all the problems. If there were a resolution of Parliament then the courts would not intervene, the monarch would not have decisions to make and there would be no need for the ouster clause Let us lift up our eyes and hope that the Commons weighs the merits of the amendment that we have sent back to them, recognises those merits, votes not on a purely partisan basis but on the basis of the strength of the arguments, and retains the change that we have already made to the Bill.
My Lords, I must also apologise for not being here in Committee, although I have followed your Lordships’ arguments with great interest One point is abundantly clear to me: the idea of not using the royal prerogative to call for an election is, at its very best, curious. The concept that a Government should limp on without the confidence of the Commons, when that Government no longer have the wish, or possibly the ability, to conduct the affairs of the nation, can do only harm to the well-being of this country. I have listened to a lot of erudite and hypothetical—indeed very hypothetical—arguments today. We cannot get away from the fact that, if a Government feel that they no longer wish to govern, then it is not only pointless to keep them in place but potentially very damaging In line with what my noble friend Lord Bridges said, restricting people from voting is anti-democratic. There should be no impediment to the freedom to allow the electorate to express their opinion at any time at the ballot box. Allowing the courts to interfere with that and to have a say may have unknown effects and cause serious harm, as the noble Lord, Lord Trevethin and Oaksey, and others have pointed out. After all, the courts can produce some very weird results My only other thought, standing here among so many noble and learned Lords, is that I wonder what the collective noun for lawyers is. Do your Lordships think it is “a bear pit” of lawyers?
My Lords, the noble Lord, Lord Grocott, asks whether the sun has risen. Yes, it is still up there, but for those who lived in the Mexican desert during the testing of the atomic bomb, the sky was so full of light that nearby farmers woke up and started working, but three hours later the light had gone. Of course, at the usual time of 6 am, the sun rose. They said, “We saw the sun rise twice”, but it had not. Physical things may help us, but also they may not For myself, I find phrases such as “A court or tribunal may not question” very difficult. Putting that in statute sets a bad precedent. The courts are restrained in the way that they approach many things; they would never simply say out of hand, “We are not going to look at this”. That is why my friend Sir William MacPherson, when someone did not want the election to take place in 1992, looked at that and then dismissed it. Now there is the idea that he should not have done so. I have always had great admiration for the British Parliament and for the Civil Service and the way that it works, which is just really lovely—some of your Lordships who were born here and live here may not appreciate it, but I do—but this measure worries me I was in the judiciary when we questioned Mr Amin for expelling Uganda citizens who happened to be Asian. There were two kinds: those who were Ugandan Asian citizens and Asians living in Uganda who were British. We questioned whether he had the right to do this. He did not like it. What did he do? He passed a decree that no court in the land could question the expulsion of Asians. That caused me a lot of problems. This measure sounds almost like that There should be no Act of any sort which is not subject to the possibility of challenge in the courts, because they are the custodians of the rule of law. We cannot say by statute, “You should not challenge this particular prerogative”; if it is not done according to the rule of law, they should be able to look at it. I have a lot of confidence in judges, lawyers and the people, because they are the guardians of the rule of law. If they do not guard that, the likes of Mr Amin will have a field day. I support the intention the noble Lord, Lord Butler, that the clause should be deleted.
My Lords, very briefly, I would like to respectfully adopt the arguments of the noble and learned Lord, Lord Brown, and others, including the noble Lord, Lord Trevethin and Oaksey, and my noble friend Lord Faulks, in this matter The noble and learned Lord, Lord Hope, said, I think, that he could not see the courts getting involved in a Dissolution case, and I think the noble Lord, Lord Pannick, said similarly. But, as my noble friend Lord Faulks has said, very many people, including many lawyers, could not see the courts getting involved in a Prorogation matter because, until the Supreme Court and Miller, that was considered to have been unarguably a political matter. But in a paradigm example of judicial activism, the Supreme Court in Miller did get involved, despite the unanimous decision—which some people find curious—of a strong divisional court below. The noble Lord, Lord Pannick, referred later to the rule of law. My point is that, until the Supreme Court and Miller, as held by the divisional court, Prorogation was considered to be a political matter.
Does the noble Lord allow for the possibility that the reason why there was no precedent prior to Miller 2 was because no Prime Minister prior to that had abused, in the view of the court, the power to prorogue Parliament in order to frustrate his views in relation to Brexit?
The use of the word “abuse” is somewhat tendentious. As I was saying on the question of the rule of law, and as held by the divisional court, until the Supreme Court decision on Miller, Prorogation was thought to be an entirely political matter and therefore not subject to the jurisdiction of the courts. I suggest that the risk remains, and pray in aid the noble Lord, Lord Pannick, in this regard, because he jokingly referred to his possible involvement in Miller 3 I rest my case. The Government are entitled for these reasons to insist on Clause 3.
My Lords, I will start where I started in the previous debate, with the parliamentary TARDIS: the Government say that we can set things back to where they were before. Ministers in the other House and in your Lordships House said that this Bill brings clarity, but it is clear that it does not bring clarity. That is why the Government have insisted on Clause 3 The elephant in the room, as has been mentioned, is Prorogation, but Prorogation is different from Dissolution. The unlawful Prorogation has had an impact on many people—I still think of it. I agree with the assessment of the noble Lord, Lord Pannick, that that was an abuse of power, but I would not extend that in the same way to a Dissolution.
My Lords, I thank noble Lords again for an interesting debate and their many contributions. Like others who have never been called to the high profession of the law, I bow to the expertise of so many of your Lordships in this matter. However, as a lay man, I notice the diverse opinions put forward by those eminent enough to have the title of noble and learned, and other learned speakers versed in the law. The underlying point here is what a pleasure it is for me, after the previous debate, to agree with the noble Lord, Lord Grocott, and others who said a similar thing. There is an underlying political point here, and a point, which I will come to, regarding the degree to which the public would simply not understand what would happen if there were interventions by the courts—a point made by the noble and learned Lord, Lord Brown. It could not redound in any way to the credit of the courts for there to be an intervention I submit to your Lordships that the concerns of those who have them are misplaced. We believe that this clause is proportionate and required, considering the direction of case law—a point underlined by the noble Lord, Lord Pannick, when he talked of the way in which the law had moved on. That is a matter that people in another place will want to notice when they consider the amendment of the noble Lord, Lord Butler, should your Lordships, to my regret, approve it. The Government are seeking to confirm the long-standing position that the Dissolution of Parliament should remain non-justiciable I explained the Government’s rationale behind the drafting of the clause in detail in a lengthy speech in Committee, which I promise not to repeat at length. However, I said to the Committee that I wanted to put the legal position on the record. I commented further in a letter, and I thank the noble Baroness, Lady Smith of Basildon, opposite for her interest in and reference to that. The letter has been laid in the Library and I hope it will be of assistance to your Lordships. I shall not repeat all the arguments but in the Government’s view, which I hope most noble Lords will agree with, it would be highly undesirable for the courts to be permitted to intervene in the Dissolution and calling of Parliament. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lord Faulks made devastating interventions on this in Committee. We heard similar arguments repeated today Just imagine the scenario. A Prime Minister requests a Dissolution, which is granted. The BBC news starts—“dong, dong, dong”; I do not know what music it has these days, but it fades away to a dramatic headline: “There will be a general election on 7 July”. Up in Telford, workers in the Labour constituency office start the printing presses. The orange tabards come out wherever the Lib Dems are congregating. The poster sites are booked, the canvassers are out, the expenses begin to accumulate and the statutory election clock begins to run. Then the news flashes across social media. Two days later, the BBC headline is “The general election on 7 July may not now go ahead because of an application to the courts.” Such a situation would be absolutely incredible to 70 million people in this country, even if it might be understandable to a couple of people trying to get a court case going. We really must avoid any risk of this happening in the interests of the country, of politics and of the courts. It would be inappropriate for them to become embroiled in what many have said is the inherently political matter of when an election is called. We must avoid the practical risk of the uncertainty concerning the general election that would follow. Even the possibility of such a court case would be disruptive, drag our judges into the political fray and frustrate the democratic process There are checks and balances, to which I referred in Committee. Ultimately, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has said more than once, the check on any alleged abuse—whatever that might be—of calling an election is the decision of the people. The noble and learned Lord referred again today to Brenda from Bristol.
I understand everything that the noble Lord has said, but is there not a contradiction there? One wants to say that the matter should not be taken to court but, in that case, where is the confidence that something could not go badly wrong with the process? Scenarios ought to be spelled out. Is there not a scenario in which this could go badly wrong? People would say, “Well, it was not conducted in the right way.”
Once the general election genie is out of the bottle, it should stay out of the bottle. The decision lies with the electorate. There is no question of a dodgy scenario. It is then down to the electorate. The ultimate political reprimand is available to them, as my party discovered in 2017. You can go backwards, as well as forward I cannot accept the amendments of by my noble friend Lord Norton of Louth for the reasons I explained at length in Committee. He argued that this clause conflicted with the rule of law. The Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, said that it was ultimately for Parliament to decide what the law on non-justiciability should be and for the courts to interpret what Parliament has said. The majority of the Joint Committee agreed that a non-justiciability clause was compatible with the rule of law in a case such as this, where the power is to enable the electorate to make a decision. As my noble friend Lord Faulks said in Committee, unless you reject the doctrine of parliamentary sovereignty, there is nothing constitutionally objectionable to the clause The Government see a strong argument for its principled and pragmatic case that the courts do not have a role to play in the issue of dissolution. That our sovereign Parliament should be able to make provision for this is entirely consistent with the rule of law. For the reasons I gave at length in Committee—and will not repeat here—we believe that the entire wording of Clause 3 is necessary to secure against the risk of an intervention by the courts On precedent, I am happy to repeat the reassurance I gave in Committee that we do not see this as setting a wider precedent. Speaking at this Dispatch Box, I repeat that this clause is very specific and has been drafted with a particular purpose in mind, namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. It is a bespoke exclusion to address this precise task. I stress again that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. In conclusion, I say to the noble Lord, Lord Butler of Brockwell, whom I consider my noble friend, that he cannot have his cake and eat it. He tells us that there is no chance that the courts would intervene, but then puts before us an amendment that would enable them to do so. I am not sure which is his argument. My noble friend Lord Norton of Louth made the same argument: that it is unlikely that the courts would intervene. In that case, why are we having this argument, with this point put forward The noble Lord, Lord Pannick, told us explicitly that such a challenge might come. So the purported, or in fact actual, intention of this amendment, were it to be passed, would be to procure the circumstances that the noble Lord, Lord Pannick, envisaged: namely, that the courts might one day intervene on a Dissolution. That is what I assume the noble Lord, Lord Butler, is wanting: that the courts should have that opportunity—although at the start he said he did not really envisage or like the idea I agree very much with the speech of the noble Lord, Lord Trevethin and Oaksey: it is vital that we maintain this clause. Deleting or altering it, as proposed by my noble friend Lord Norton of Louth, would be, in my submission, like building a fence around a field only to leave the gate open—or having an umbrella with holes in it. It would not be completely effective in the light of past judgments by the courts. Desiring to avoid the involvement of the courts and to secure absolute certainty on this point, and on the basis that this does not provide a precedent for the future, I sincerely hope that noble Lords will withdraw or not move their amendments and join with the other place in supporting this clause.
My Lords, I am grateful to all those who have spoken. This has been a very valuable debate which indeed shows the value of the House of Lords. I am especially grateful to the noble and learned Lord, Lord Hope of Craighead, as well as the noble Lords, Lord Beith and Lord Pannick, and the noble and right reverend Lord, Lord Sentamu, for their comments My noble friend Lord True will not be surprised to hear that he has not persuaded me. For the reasons I have given, I regard the amendment as necessary to remove the words that are either redundant or constitutionally objectionable. This is not about keeping the courts out but about the use of certain constitutionally objectionable words within the clause. My noble friend did not address adequately—indeed, did not address at all—the point that, if we are dealing with a personal prerogative power of the monarch, there is no advice to challenge. I notice that the noble Lord, Lord Faulks, and my noble friend Lady Noakes did not pick up on the distinction between the prerogative powers that are exercised on advice and those that are exercised not on advice. That is the fundamental distinction that has not been recognised or addressed I normally agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but on this occasion I think he is totally wrong. He argued that he was seeking to protect future members of the Supreme Court. I regard it the other way round and consider that we would be protecting future members by removing the provisions in this clause because, although my noble friend Lord True said that this was not intended to set a precedent, the point is that it will be on the statute book. It will be available to parliamentary draftsmen in the future when other measures come along and they will think, “Oh, let’s keep the courts out. There’s a remote chance they might get involved”. Therefore, there are dangers in this.
My Lords, I too am very grateful to those who have taken part in this debate This for me is a matter of principle. It is wrong, as the noble Lord, Lord Pannick, the noble and right reverend Lord and the noble and learned Lord, Lord Hope, said, that there can be no protection from the courts against the improper use of executive power. My hackles rise when I hear the Minister use the phrase “The courts are not permitted”—“This legislation is to ensure that the courts are not permitted to look at this matter”. In response to the noble Lord, Lord Grocott, this is not an issue of the courts preventing the people having a say in an election. It is about the courts preventing the illegitimate or illegal use of executive power. That is what the issue is I believe it is vanishingly unlikely that the courts would become involved in this matter—I am now just answering the point made by the noble Lord, Lord True. I would be prepared to have a lifelong bet with him that this situation will not arise in his or my lifetime. However, the courts can look after themselves. They do not need the protection of legislation in this matter; it is indeed for the courts to decide the merits of issues and not for the Government to legislate in advance to prevent them doing so. Therefore, because this for me is a matter of principle, and because I would like, in case the amendment we previously passed is overturned by the House of Commons, the opportunity to return to this on ping-pong, I beg leave to test the opinion of the House.
My Lords, I tabled this amendment last week and received a letter on Monday evening from the Minister that answers a number of my points. Therefore, I mainly wish to stress the usefulness of the Cabinet Manual and to encourage the Minister to repeat what he said in my letter on the Floor of the House Paragraph 227 of the Joint Committee report points out that: “legislation—by definition—does not create or restore conventions … If the old conventions on dissolving and summoning Parliaments are to be restored, or indeed if they are to be replaced by new ones, there needs to be a political process to identify, and to articulate, what those conventions are.” I have heard the noble Lord, Lord Hannan, make two speeches in different debates over the last two weeks about the importance of due process and the political process and of not just rushing things through or allowing Prime Ministers to decide them. The Constitution Committee report on the revision of the Cabinet Manual stresses not only the importance and usefulness of that manual, but the need for there to be consultation with Parliament about the revision of the manual, because it relates to the relationship between the Executive and Parliament The Minister’s letter, which I thank him for, stresses that conventions “can only operate effectively when they are commonly understood and where there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day” This has not been entirely true of our current Prime Minister over the last two years. We need to get back to that. I look forward to the Minister’s response.
My Lords, I remind the Minister that there was a Constitution Committee report on the Cabinet Manual and I think the Government have yet to respond. Could he give an update on when a response is likely to be? As it would cover these issues, it would be helpful when we have the opportunity for a longer debate in your Lordships’ House, given that we do not have the time today.
My Lords, I thank the noble Lord, Lord Wallace, for his thoughts on the Cabinet Manual. It is important. I am pleased to say that, of course, the Government agree on the fundamental importance of the Cabinet Manual, and I can confirm to the House, as I have indicated privately to the noble Lord, that the Government intend to publish an updated version of the Cabinet Manual within this Parliament. In response to the noble Baroness opposite, I can also add that I have written to the newly appointed chair of the Constitution Committee, the noble Baroness, Lady Drake, to set out the Government’s intentions on this topic There have been a number of developments that render the current version out of date, not least—if we ever get to the end of it—this legislation going through now, which will have to be taken into account. As a result, this amendment, which would prevent the Bill coming into force until after a revised version of the Cabinet Manual has been published, is not needed and would be unhelpful. It would delay the commencement of legislation, which, one would infer, our Parliament will pass shortly, and we would be left carrying on under the terms of the Fixed-term Parliaments Act. I hope, for that technical reason, but also on the basis of the assurance that I have given the House, that the noble Lord will feel able to withdraw his amendment.
I thank the Minister for repeating that statement. I stress that the revision of the manual should ideally come well before the timing of the next election, and I strongly support the opposition suggestion that there should be a debate, ideally in both Houses, on the conventions that will have been restated. On that basis, I am happy to beg leave to withdraw my amendment.
To ask Her Majesty’s Government what steps they are taking to reduce the incidence of knife crime involving young people.
My Lords, we have made £130.5 million available this year to tackle serious violence. This includes funding for violence reduction units, which draw key partners together to address the root causes of violence, and targeted police action to deter and disrupt knife crime. We are also investing £20 million in prevention and early intervention to prevent young people being drawn into violence in the first place.
My Lords, I am grateful to the Minister for that reply. I know she shares the House’s concern about these young people who have died on the streets of this country. Last year was the worst year on record. It is a terrible waste of young lives. Is the Minister willing to look at a scheme initiated by the police in Hertfordshire, where they have established a specialist team of officers to link with the other key services to identify those young people who are in danger of being drawn into criminality, so that they can prevent, I hope, terrible things from happening to them and other young people? This scheme, though in its infancy, seems to be producing very encouraging results.
I was pleased to be able to read about the scheme and to see the multiagency approach it is taking, trying to intervene before young people get involved in criminality. I am always pleased to hear examples and share good practice with other agencies.
My Lords, the Prime Minister and Home Secretary have been rebuked by the statistics watchdog for using misleading figures, claiming a falling crime rate under their leadership. Who is right: the Government or the statistics authority? Some communities suffer much more than others from knife crime. Could we have a zero-tolerance policy and, in order to tackle the problem, a breakdown of the figures for the age, sex and race of the offenders?
My Lords, the Home Secretary did state, in her evidence to HASC on 2 February, that while some aspects of crime are going down, not all aspects are. The Home Office press release on 27 January stated that the figure used to show the reduction in crime excludes fraud and computer misuse. Of course, data is crucial when we are thinking about interventions in whatever crime it is.
My Lords, can my noble friend tell me how many knife crimes are drug related?
As my noble friend will know, the picture of knife crime is not a simple one. Many factors drive the use of knives, both as regards victims and perpetrators, but there is no doubt that county lines drug-running does increase their usage.
My Lords, I ask the Minister whether the Government are helping youth clubs.
I am sure that the noble and learned Baroness knows about some of the youth interventions we are putting in place, including in youth opportunities. We are investing £200 million in a youth endowment fund to ensure that those most at risk are given the opportunity to turn their lives away from violence and lead positive lives.
My lords, two police forces so far, South Yorkshire and Thames Valley, have decided to stop showing images of knives that they have found. My colleague at the London Assembly, Caroline Russell, has asked the Mayor of London whether he will encourage the Met to stop sharing those images, because it probably encourages knife crime rather than diminishes it. Is that something the Home Office might support?
If police forces decide to do such things as stop showing pictures of knives, that is entirely a matter for them. Of course, we support whatever works—sometimes showing pictures of knives increases the fear factor in getting involved in things such as knife crime—but it is down to local police forces.
We share the concerns of the noble Lord, Lord Laming, about knife crime and the devastating effects it can have on young people in particular. The Minister mentioned violence reduction units, which bring together local partners to tackle violent crime by understanding its underlying causes, and by bringing additional funding. Violence reduction units have been introduced in 18 police force areas. When are they going to be extended to the remaining 25 police areas to support local multiagency work to tackle youth crime?
I agree with the noble Lord that VRUs are a very valuable tool in early intervention. We have provided £35.5 million this year to fund them. They are commissioning a range of youth interventions, and I will keep the House updated as they become more widespread.
My Lords, will the Minister say something about interventions in schools to discourage young people from becoming involved in gangs, which seem to be a very rich source of knife crime on our streets?
The noble Lord is absolutely right in what he says, and we know that engaging in education is one of the strongest protective factors against violence. That is why we have invested over £45 million in both mainstream and alternative provision schools in serious violence hotspots, to support young people at risk of involvement in serious violence to re-engage in education. Since November last year, in 22 areas across England alternative provision specialist task forces have been working directly with young people.
My Lords, many troubled young people find themselves excluded from education and drawn into violent crime through financial incentives. What are the Government doing to promote work and apprenticeships to young people excluded from school?
Apprenticeships are a very good way of diverting people away from violence and into meaningful activity, and on to a working life. I have just answered the previous question about what we are doing in terms of education. Moving on from that, our £3.3 million Creating Opportunities Forum is providing meaningful employment-related opportunities to and raising the aspirations of young people at risk of serious violence over the next two years. More widely, we have invested £237 million to provide extra traineeship places between September 2020 and July this year, with further investment through to the end of the 2024-25 academic year. Traineeships are a short and flexible combination of learning and work experience, and they give young people who lack them the knowledge and skills to get an apprenticeship or a job.
My Lords, does the Minister recall the meetings which I have had with her about the use of data and focusing on data to identify the locations in neighbourhoods which need extra resources in trying to prevent crime? In particular, does she recall the conversation she had with Professor Shepherd from the University of Cardiff, and the work he has done there, which has been spread to other parts of the country? Could she update the House on how that is being used?
I very much remember that meeting and the professor’s very forensic detailing of exactly where crime hotspots were occurring. Of course, local forces will determine the risks in their local areas and the correct interventions to be put in place. Although I support what the professor is doing, it is, as I said to the noble Baroness, Lady Jones, up to local forces to decide.
Will the Minister explain what is being done for people who have not returned to school, who are not excluded from school, but, following Covid, have decided to self-exclude, who I believe are very severely at risk?
That should be a worry for us all, not only in terms of the risk of getting involved in knife crime, but also the risk to their education getting far behind—perhaps safeguarding risks too. The noble Baroness raises a multifactorial and worrying trend that the Home Office has been concerned about right through the pandemic.
To ask Her Majesty’s Government when they will publish their response to the Review of the Gambling Act 2005.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my interest as the chairman of Peers for Gambling Reform.
My Lords, as the Gambling Minister made clear in his speech at the GambleAware annual conference in December, our review is looking at a very wide range of issues and our call for evidence received 16,000 submissions, which we are considering carefully. We will publish a White Paper setting out our vision for the sector in the coming months.
I thank the Minister for that reply, but with more than one gambling-relating suicide every day, delaying reforming our outdated gambling regulations is putting lives at risk. We do not have to wait for the White Paper to make changes, as we have seen, for example, in banning the use of credit cards for gambling. Given that strict stake and prize limits apply to land-based gambling but bizarrely not to online gambling, will the Government fix this harmful omission now and commit to a regular review of limits in years to come? Frankly, chaos in Downing Street should not be an excuse for delay in protecting lives.
As the noble Lord rightly notes, we have made significant progress in recent years to make online gambling safer, including a ban on gambling with credit cards as well as new rules to reduce the intensity of online slot games. But we recognise that more can be done to protect people who gamble online. Our review is looking closely at the case for greater protections for online gamblers, including protections on products and for individuals. We called for evidence on protections including the pros and cons of stake limits as part of our review, and of course, we are considering all the evidence carefully.
My Lords, the Government have had the House of Lords report, which is an excellent report, led by the noble Lord, Lord Grade, that made strong recommendations on a system that would protect the vulnerable as well as give some certainty to the industry. Given that unlicensed sites have now grown, according to PricewaterhouseCoopers, from £1.4 billion to £2.8 billion, when are the Government going to do something to safeguard the vulnerable and give some certainty to the racing and sporting industries?
The noble Lord is right; it is an excellent report. I had the pleasure of serving on that committee before joining Her Majesty’s Government. The recommendations and evidence contained in it, as well as the 16,000 submissions we have had to our call for evidence, are all forming part of our careful review of the Gambling Act. We will come back with our proposals in due course.
My Lords, I must ask—
My Lords—
Grade!
I have never been so popular.
It could all change.
More ships I thank my noble friend the Minister for that response. One of the lessons of the implications of the outdated nature of the 2005 Gambling Act, which the Government are addressing, is that there was a serious lack of accountability on the Gambling Commission. It had many powers to stop many of the abuses that have led to such tragedies as we have heard and as we read about in the newspapers almost every day. We are very interested to know what the Government can do to increase the accountability of the regulator in this sector.
The Gambling Act review is looking at the Gambling Commission’s powers and resources, and how it uses them. The Commission has a new chairman and chief executive, who will be working closely with DCMS as they implement their vision for the organisation, but between April 2020 and March 2021 the commission imposed more than £30 million in financial penalties for breaches of its licensing conditions.
My Lords, I declare my interests as a member of Peers for Gambling Reform. The British Medical Journal said: “We do not allow tobacco companies to design tobacco control policies, yet the gambling industry, through the organisations it funds, shapes our responses to … harms” Does the Minister agree that the system of voluntary levies is part of the problem, because the industry is controlling the messaging, and that what we need are statutory, smart levies to give total independence to research, treatment and education if we are really to tackle gambling-related harms?
The Government have always been clear that they will look at the case for alternative funding mechanisms if there is a funding gap. All options remain on the table, including a statutory levy such as the right reverend Prelate suggests. The Department for Health and Social Care is working to improve care and treatment pathways to support the 15 clinics that were committed to in the NHS long-term plan. NHS England has also worked with GambleAware to design effective treatment.
My Lords, I welcome the campaign by GambleAware, which highlights that up to 1 million women are at risk of harm through gambling, while stigma and shame prevents two in five women experiencing such harm seeking help. What help is being given to spot the early warning signs of harmful gambling, focusing on women aged 25 to 55 who gamble online? Can the Minister confirm that the review and the ensuing White Paper will consider and refer to the impact of gambling on women, as well as those who are close to them?
The noble Baroness makes an important point. We have seen already, through the evidence gathered by Public Health England, the way that there are differential impacts on certain groups of people, whether by geography, sex or age. We want to improve the evidence base in the research so that we can ensure our policies are based on good and concrete evidence. That is part of the review of the Act that we are undertaking.
My Lords, in the speech to the GambleAware conference to which the Minister referred, the Gambling Minister recognised that affordability checks were key to reducing gambling harm. Are the Government aware of the research by the Social Market Foundation showing that £100 spent per month was the right threshold above which gambling operators should be obliged to make affordability checks?
That research by the Social Market Foundation was, I know, noted in the letter sent to my honourable friend the Gambling Minister. We see a clear role for considering an individual’s financial circumstances to help stop devastating losses, but to be workable and to prevent harm, checks need to be proportionate and done in a way that is acceptable to customers, too. We continue to work with the Gambling Commission on this issue in the run-up to our White Paper.
My Lords, further to the answer the Minister gave to the right reverend Prelate, can he give a categoric undertaking that the gambling industry will have no influence whatever in how the levy is allocated to research, harm prevention, education and the treatment of those affected by gambling addiction?
The Government have always been clear, as I said, that we will look at the case for alternative funding mechanisms and all options remain on the table. Of course, we are taking views from industry, as we are from everybody with an interest in this area. We will take all those views into account as we prepare the White Paper.
My Lords, I declare my position as a member of Peers for Gambling Reform. In Washwood Heath Road in Ward End, Birmingham, there are three bookmakers next to each other and another a few metres away. It is known to the locals as the bookie belt. We know from studies last year that bookmakers are 10 times more likely to be in the poorest areas of the country than the richest. This takes away choice in food and other essential shops. Should not the Government’s levelling-up White Paper have dealt with this issue of place-based gambling dominance?
My Lords, it is also important to remember that a great number of people gamble legally and enjoy doing so without harm. We want to strike the right balance to make sure that people can conduct this legal activity, while addressing questions of regional disparities. That is why we have put out our call for evidence. We are glad to have received so many submissions and are considering them carefully.
My Lords, when does the Minister expect the Government to respond to the review of the Gambling Act 2005? We all dislike the involvement of children in gambling, and bringing that to an end is well overdue.
As my honourable friend the Minister with responsibility for gambling has made clear, we will respond to the review in the coming months. My noble friend makes an important point about the role of children. We have looked at the impact of gambling on children as part of our review, and protections are already in place—for instance, to limit children’s exposure to advertising—so we are not waiting for the review to take action where it is needed.
My Lords, gambling addiction can lead to poverty and homelessness. Does the Minister agree that local councils should ensure that front-line staff are provided with training on harmful gambling so that they can recognise potential cases and are given the opportunity to help those in the greatest need?
Yes, there is an important part for local authorities to play, just as there is for the NHS. It is right that the industry contributes to treatment costs, and the largest operators have committed to provide £100 million for treatment over four years. As I say, these are all areas that we are considering as part of the review of the Act.
To ask the Senior Deputy Speaker what progress has been made with enabling electric vehicles to be charged on the Parliamentary Estate; and how many electric vehicle charging points are available to members of the House of Lords.
My Lords, despite what the Order Paper says, clearly, I am not the Senior Deputy Speaker. The noble Lord, Lord Gardiner, has asked me to reply as chair of the Services Committee— lucky me The Services Committee has considered proposals for electric vehicle charging points to be installed in the House of Lords’ part of the estate. Unfortunately, the scheme we considered did not offer value for money and, regrettably, there are currently no charging points for Members in the House of Lords’ part of the estate. However, we are totally committed to finding a solution and will continue to look at how to provide Members with access to charging facilities.
My Lords, I sympathise with the noble Lord, Lord Touhig, who has the unfortunate task of answering for a bureaucracy straight out of “Yes Minister”. I may have the answer: many of us in this House have been arguing for this for four years, during which time the costs have risen by 700%. Noble Lords can imagine how surprised I was to discover that, at Christmas, eight charging points were put in Speaker’s Court for ministerial cars. I was even more surprised to find that the government car service will not allow them to use them, as of yet. Would it not be possible for your Lordships’ House to use these, and for the ban on our using the underground car park to be lifted, which I understand is in force to allow equipment for restoration of the House to be stored on two floors?
I think the noble Lord is ready to organise a raiding party. He raises an important point. The director of facilities contacted the Speaker’s Office about the charging points in Speaker’s Court, and it responded by saying, “There are four charging posts providing charging for eight cars. Access to the points is currently managed by Mr Speaker’s Office. The points are intended for use by Mr Speaker, ministerial cars and visiting dignitaries.” I say to the noble Lord that I intend to raise this more formally and seek a full dialogue with the Speaker’s Office. If we can find a way forward to help noble Lords in this House to access that facility, we will certainly do so.
My Lords, is it not a poor example to the country as a whole that here at Westminster we do not have the facility to charge electric vehicles? We are encouraging the whole country to buy electric vehicles and setting targets for the reduction of carbon, yet here at Westminster we have no facilities, other than for those my noble friend mentioned. I apologise for asking him a difficult question, since he is a good colleague and friend—which I cannot say about many Ministers—but, here of all places, where we should be setting an example, we are signally failing to do so.
I could not agree more with the noble Lord. We passed the legislation; we should be setting an example. However, in this case of the scheme we recently looked at, we must consider value for money. We could not justify going ahead with the scheme at that time because we could not justify the cost of it to this House or to the wider public whose money we are spending. That was the scheme we recently turned down. We will continue to look at opportunities and ways of finding provision for your Lordships to charge their cars on this site. It is a priority. We have to be seen to be doing what we are asking others to do.
My Lords, the noble Lord, Lord Forsyth, referred to the two EV charging points in the underground car park. I must declare an interest as I have used them on several occasions. We can no longer use them. Can the noble Lord explain whether he has had any conversations with the authorities of the other House about us being allowed to use those in future in the same way that Members of that House are able to?
Following discussions with Black Rod, representations were made to the Serjeant at Arms about the facilities at the other end, which the noble Baroness mentions. This has been given active consideration and we were given to understand that this would be looked at on a case-by-case basis. I say to the noble Baroness that I am hopeful that we might see some progress on that matter before too long but, as it stands, we are not able to use those chargers.
My Lords, I have intervened on this subject on previous occasions. May I ask the noble Lord to enlarge slightly on “value for money”? I totally support the noble Lord, Lord Cunningham. Surely, we must set an example in the House and have these charging points so that we can use all-electric cars?
My Lords, it is difficult because the Services Committee agreed that it wished to proceed with a plan for EVCs. In April last year, it was decided that a business case had to be made. That is the proper way to consider these matters. In July last year, the design authority revised the scheme it was submitting for the business case, having identified, hitherto, construction problems when it put in the EVCs in Speaker’s Court. By September, the committee was advised that the original estimate of £53,000 had increased by 700% and was now £370,000. For that reason, it was decided in November that we could not go ahead. Those are the reasons that the last plan was scrapped but we continue to try to find an option now to progress. I know that the noble Lord, Lord Geddes, who just asked this question, is on the edge of getting an all-electric car and I hope that by the time he gets it we will have somewhere for him to charge it.
May I invite the noble Lord to come down to Chancellor’s Court with me? He will find four 13-amp charging points similar to what one might have on the side of one’s house, but they are weatherproof. Who can use those and could not a similar design be used for other courts? They may not look that good but an electric power lead outside the office next door and an external socket would surely be a very good start.
I thank the noble Lord, Lord Berkeley, for his earlier comments about these matters and the discussions we have had. Yes, we have looked at Chancellor’s Court. The standard office electrical circuits like the one in Chancellor’s Court are not designed to provide the level of power continually that we need for EVCs. Chancellor’s Court is also used, of course, for building projects and storing project cabins and machinery. I can tell the noble Lord that in the continuing review we are not going to look at Chancellor’s Court as a long-term alternative; rather we will look at the Peers’ car park and Royal Court.
My Lords, the noble Lords, Lord Touhig and Lord Borwick, and two of the staff were kind enough to take a walk around with me to look at various options that had not been considered. I am saddened that, for example, Chancellor’s Court has been excluded, apparently because it would be inconvenient for contractors who might need to reconfigure some future plans they have for some temporary cabins. We found many a location where this could be done appropriately and cheaply to bring in the facility in that £50,000 range. May I just say that the contractors do not run this House? The issues of net zero are far more significant and I wonder whether the noble Lord, Lord Touhig, could take that back to the staff and ask them to approach the problem as a way to enable us to have the facility and not to think through what every obstruction might be, even if hypothetical.
At the outset, I thank the noble Baroness and the noble Lord, Lord Borwick, for walking the estate with me and our technical people, looking at their ideas and trying to find solutions. I am pleased that one of the solutions that we had been discounting, about plugging into lamp posts, now has proper, active consideration as a result of their efforts. Chancellor’s Court concerns me, because it is the access through which school parties come to visit. It is not the best access for vehicles. Royal Court, on the other hand, has sufficient electricity supply; it is easy to access and it has plenty of parking space. I will not discount what the noble Baroness says. I will have another look at it, but I think that we perhaps have better options and I hope that the Committee will consider them as well.
My Lords, does the Minister agree that the recent discovery of an electrical duct directly in the middle of the Peers’ car park actually gives great hope that this problem can be solved quickly and easily?
I thank the noble Lord, Lord Borwick, as I said, and the noble Baroness, for coming round with me and coming up with these ideas. I have seen the exchange of emails that the noble Lord has had with the principal electrical engineer. I do not want to raise hopes too high at this stage, but while there is no doubt that the ducts in their current state could not be used, I can tell the noble Lord that the complete survey that we are carrying out now will be presented to the Services Committee as a possible option, depending on the results. That is down to his efforts. I pay tribute to him, as a former member of the Services Committee, as hugely hard-working and diligent, and for the refreshing ideas that he and the noble Baroness, Lady Kramer, have managed to give to this whole enterprise.
To ask Her Majesty’s Government what assessment they have made of the paper A Literature Review and Meta-Analysis of the Effects of Lockdowns on COVID-19 Mortality, published in January; and in particular, the conclusions that (1) lockdown measures during the pandemic reduced COVID-19 mortality by 0.2 per cent on average, and (2) the public health benefits of such measures were outweighed by their economic and social costs.
The paper has yet to be peer-reviewed and there are important methodological issues that we would expect the reviewers to address. For example, the figure of 0.2% reduction in Covid-19 mortality from lockdown comes mainly from one of the 34 studies reviewed, while other studies report a reduction in mortality of up to 35%. To examine the trade-off between the public health benefits of lockdown and the economic and social costs requires a wider examination of the evidence.
My Lords, I am grateful to my noble friend for that reasoned Answer. I have absolutely no idea whether these conclusions are correct, but does my noble friend think that the formulation of government medical policy should be influenced by a wider range of scientific advice, such as that from the authors of this paper, rather than by the narrow focus of SAGE? This is epitomised by the discredited Neil Ferguson. Is he an ex-member? I cannot quite remember. He is still dragged out by the BBC to spread inaccurate gloom and doom. Can my noble friend also confirm that the Chief Medical Officer, at the Cabinet meeting on 8 December, predicted that without further lockdown by new year London would be like Lombardy was in March 2020?
Before I answer any further questions, I should draw Members’ attention to my registered interests and more specifically to the fact that, when I was the academic research director of a think tank, I invited one of the authors of the paper to speak at an academic webinar. In fact, he did not speak on this issue; he spoke on Lebanese currency—quite different issues, as noble Lords can imagine I say in response to my noble friend that what is important is that we look not only at the epidemiological evidence and the medical evidence but, in considering government policy, at the wider range of social, economic and other factors. For example, even within clinical decisions, there were some asking for lockdown in order to prevent hospitals from being overwhelmed, but that was counterbalanced by mental health experts who were very concerned about the impact on mental health. As my noble friend will know, there are also trade-offs with the economy and other issues.
Would the Minister agree that smoking causes cancer, that the earth is round and that, in a pandemic caused by a respiratory virus, asking people to stay at home at the height of the pandemic reduces transmission of infection? Furthermore, would he agree that meta-analysis is the right way to look at randomised control trials and how they perform but not the ideal method to look at observational studies, as referred to in the Question?
The noble Lord makes important points. If we look at the history of the debate about the world being round, at one time scientists believed that the world was flat. Because of scepticism and contestability in science, we have been able to come to the conclusion that the world is round. That shows the importance of science being contestable and of having an open debate.
On the issue of Covid and mortality, does the Minister have a view about the allegations made in the BBC2 documentary last night that there were hundreds of thousands of excess deaths because of the business and political attacks on the AstraZeneca vaccine in the early days? The fact is that its non-profit system did not suit the drug industry’s business plan. The massive allegation that, because of this failure, hundreds of thousands of extra people died, clearly ought to be investigated.
I apologise to the noble Lord. I did not see the programme last night. I was swatting up for the Health and Social Care Bill debate today and for this Question. The noble Lord refers to an important point. We should not forget not only the contribution that the research community made towards those vaccines, but also that AstraZeneca was prepared to supply, commercialise and distribute them on a not-for-profit basis. Sadly, it was attacked for doing so, not just for commercial reasons, but also by other countries that engaged in vaccine nationalism and disparaged the efficacy of the vaccine. Unfortunately, people in other countries have lost out. I hope that we do not see this in future.
My Lords, the noble Baroness, Lady Brinton, has indicated her wish to speak. This may be a convenient moment.
My Lords, this paper’s economist authors admit that it reflects their opinions. Extraordinarily, they chose to exclude the most recognised epidemiological research on excess deaths. It is not even peer-reviewed. The conclusions are contradictory to the established annual excess death protocols, published for years by the ONS and other national statistical agencies around the world. Which data should scientists advising the Government and Ministers rely on when making decisions about lockdown?
The noble Baroness makes some important points about the meta-analysis in the paper. Undue attention has been given to one paper out of 34 studies. While I am answering the noble Baroness, I will refer to an earlier question. In academia there is a huge debate about meta-analysis in all sorts of fields. The question is what other research should be analysed with meta-analysis. This continues to be an issue of debate among academics in many disciplines.
My Lords, I want to follow on from what the noble Lord, Lord Patel, said. The World Health Organization’s authoritative and in-depth research shows the effectiveness of large-scale social distancing measures and movement restrictions—ie lockdown—in slowing down Covid-19 transmissions because they limit contacts between people. Is it not far better to work on the basis of this evidence, as well as our own much-respected evidence from the CMO and his team, rather than a non-peer-reviewed paper from an American think tank?
Once again, the noble Baroness makes the point that this paper has not been peer-reviewed. That is an important consideration. The Government were quite clear that they introduced measures including lockdown—in the face of some opposition, but with the support of the Benches opposite—because, on the balance of epidemiological and other evidence, it was important to prevent and reduce the risk of transmission of the disease.
My Lords, many decisions taken during this pandemic led to unintended consequences across the board. Apart from the devastating economic impact on business and industry, the children of the United Kingdom were most badly affected. Mental health problems escalated, particularly due to lockdowns. I hope that I never live to see another lockdown in this country. Can the Minister tell the House exactly what the NHS is doing to address this particular issue?
My noble friend raises an important issue about the trade-offs that had to be considered when the Government announced the lockdown and plan A measures. They also announced measures to restrict the transmission of the disease. Costs and benefits had to be weighed up. It was often a nuanced decision. We are clear about the backlog in tackling mental health issues. In debates on the Health and Social Care Bill, many noble Lords across the House have expressed the importance of tackling mental health issues in this country. We hope to put that at the forefront of future health policy.
My Lords, all papers with modelled counterfactuals are excluded from the report mentioned in the noble Lord’s Question. As this is the most common method used in infectious disease assessments, does the Minister agree that this has the practical effect of excluding most epidemiological research from the review?
Had I still been in academia and was asked to referee this paper for a journal, I would have pointed out a number of issues, including the focus and bias on one particular study, for example, and the studies that were excluded without justifying why.
My Lords, I understand that the rules on replying to Questions mean that there is not enough time for the Minister to explain everything which is wrong with this particular paper. Does he agree that it would be useful to draw your Lordships’ attention to the work of the Science Media Centre, which has provided a comprehensive explanation of its deficiencies?
If the noble Lord would like to write to me with details of that paper, I would be happy to share it with other noble Lords.
My Lords, 54 health professionals have urged the Commons Public Administration Committee to conduct an inquiry into government use of covert psychological strategies, particularly in Covid messaging, which raise significant ethical issues, including the need to obtain consent. What is the Government’s response to growing evidence of fear inflation and social division due to the equating of compliance with virtue and use of peer pressure to ensure conformity with lockdown and other Covid restrictions?
I thank my noble friend for giving me advance warning of his question. The British Psychological Society’s ethics committee has been approached on this topic and has provided a response that has been published in online articles by the authors of the recent letter. Overall, the BPS concludes that it believes that the contribution of psychologists in response to the pandemic was entirely consistent with the BPS code of ethics and conduct, demonstrating social responsibility and the competent and responsible employment of psychological experience.
My Lords, I wonder if I might say a word.
Oh!
I thank the returning officer for announcing the result of another exciting by-election. It was a minimalist announcement; over the years I have tried to get more detail into the formal announcement. It is available in the Printed Paper Office, but members of the public who may be watching and interested in this subject—I assume there are one or two somewhere—cannot go to the Printed Paper Office I note, by the way, that the only reference to this on today’s Order Paper is in the smallest possible type, so that hopefully we will not notice. Well, I did notice. The Clerk, of course, was quite right to say that a Conservative won the election. There may be people watching who take an interest in these things who will be pleased about that, because Governments go through sticky patches and this Government are having one. A Conservative victory is terrific in a by-election I have to give the facts. The winning candidate was a Conservative, the second candidate was a Conservative, the third on the list was a Conservative, and the fourth, fifth, sixth, seventh, eighth, ninth and 10th were Conservatives—there were 10 candidates and they were all Conservatives. It was pretty locked down in terms of what might happen. Added to that is the fact that you needed to be a Conservative in order to vote—I know when I am beaten; that is game, set, match and tournament On the question of the electorate—again, this perhaps needs explaining to people outside—it consisted of 45 people. I noticed that only 36 voted, so the turnout is slipping. Forty-five people could have voted, and they are a very privileged group. Since these by-elections resumed last June, there have been eight of them—we have by-elections more frequently than they do in the Commons—and these 45 electors have elected three Peers in June last year, and another one now. So 45 people have elected four Members of Parliament. I am fairly confident in saying that, in the history of parliamentary democracy, never have so many been elected by so few My final comment is that it is traditional in by-elections in this country—there is one pending in Birmingham Erdington—as has been the case for over 100 years, that women play a full part, both as candidates and as voters. As the House knows, in the case of by-elections for hereditary Peers, we do not operate that system, and all the candidates were men. Indeed, all the candidates in all the by-elections held since last June have been men, and in this case all the electorate are men. Again, it is something of a slam dunk I would like to end on a bit of good news for the House: I understand that there is another by-election pending, following the retirement of Lord Rotherwick. It will be similar to the present one. I am wary of making political predictions, but my guess is that it will be won by a Conservative, it will be a hereditary Peer, and it will be a man—there is a tip if any of you are going to the bookmaker’s.
That the House do agree with the Commons in their Amendments 1 to 4.
My Lords, with the leave of the House, I will move that the House do agree with the Commons in their Amendments 1 to 4. In doing so, I will briefly summarise the changes which have been made to the Bill since last it was before your Lordships’ House. All of the amendments which have been made were brought forward by Her Majesty’s Government and garnered support across all parties in another place. Commons Amendment 1 is minor and technical, responding to a drafting issue that was helpfully highlighted by the Investment Association in its written evidence to the Public Bill Committee. Amendments 2 and 3 respond to the lengthy debates on how dormant assets money should best be spent, and specifically the calls to establish a community wealth fund. Amendment 4 is wholly procedural and removes the privilege amendment made in your Lordships’ House, as is the procedure in these cases. First, I will speak to Amendment 1. This is a minor and technical government amendment which is required to uphold the key principle of full restitution: to ensure that people can reclaim the amount owed had the transfer to the scheme not happened. This amendment clarifies that money derived from collective scheme investments cannot be transferred into the scheme as client money. This is in response to feedback we received from the Investment Association during the passage of the Bill, and we thank it for its helpful feedback on this issue Without this amendment, there would be an unintended loophole where ISA fund managers and investment platforms that hold collective scheme investments, and are able to convert them to cash, would be able to transfer this money into the dormant assets scheme under client money clauses. The investment and wealth management clauses of the Bill recognise the fluctuating market value of investments by entitling owners of dormant collective scheme investments to reclaim the value of the share or unit at the point of reclaim. In contrast, the right to reclaim under client money clauses does not account for the market value, as the asset is already held in cash. We believe that this applies to a small number of cases. However, if relevant institutions have the contractual cover to sell the asset on behalf of its owner and transfer the funds to the scheme as client money, this would mean that the owner would be treated differently from if their dormant asset had been transferred under the investment and wealth management clauses. Remedying this discrepancy protects the vital principle of the scheme: full restitution. It ensures that the collective scheme investments are excluded from the client money clauses, so that the owners of these dormant assets will not be treated differently depending on which type of investment institution happened to hold it for them. Unfortunately, this will have the effect of excluding collective scheme investments held by investment platforms and ISA fund managers from the scheme at this time. Bringing them into scope would require complex technical work, and we are working with the industry to understand if and how this can be accomplished in future under the power to extend the scheme through regulations. We thank our industry partners again for their thoughtful and very helpful feedback on this issue I now turn to Amendments 2 and 3. As noble Lords know, a key topic of debate throughout the passage of the Bill has been the proposal to use dormant assets funding to establish community wealth funds in England. We have heard, both here and in the other place, the merits of considering this model, not least from the former Bishop of Newcastle before she left your Lordships’ House. This is a model whereby left-behind communities are empowered to make their own decisions on how best to develop vital social infrastructure in their local areas. This kind of devolved and very local decision-making is, of course, a key tenet of the Government’s levelling-up White Paper, which was published last week. We agree that this important proposal warrants careful consideration—not only by the Government, but by the public and voluntary industry participants that underpin the scheme’s success. In Committee in the other place, the Government made a formal commitment to include community wealth funds as an explicit option in the first consultation launched on the purposes of the English portion. My honourable friend the Minister for Sport, Tourism, Heritage and Civil Society met Her Majesty’s Opposition and the co-chair of the All-Party Parliamentary Group for “Left Behind” Neighbourhoods to discuss this commitment. With their support, the Government brought forward Amendment 3 to place this commitment in legislation. This responds to calls heard in both Houses to refer to community wealth funds on the face of the Bill—making a clear statement that the Government are considering this model and are supportive of its underlying principles, while protecting the integrity of the consultation process. We maintain that an open and fair consultation, without predetermining its outcomes, is essential to securing the expanded scheme’s impact The Government are clear that Amendment 3 is the furthest that the legislation is able to go in this area, and that is why Amendment 2 removes community wealth funds from being pre-emptively named as a possible option in a future order, in favour of Amendment 3 I thank noble Lords on all sides of the House for the constructive debate that we have had on this issue. I am very grateful for the spirit of positive collaboration shown throughout the passage of the Bill. It is in this spirit that the Government brought forward their amendments. I am also grateful for the scrutiny it has received in the other place, and I believe that this has presented your Lordships’ House with a strengthened Bill. I hope that noble Lords will, therefore, support the Government in these amendments, as was the case in the other place. Sending this Bill on its way to the statute book will enable the Government to shift our focus more swiftly to the implementation of the scheme expansion, including launching the consultation and unlocking hundreds of millions of pounds more across the UK. I beg to move.
My Lords, I thank the Minister for his explanation of these amendments. It was most helpful, particularly about Amendment 1, which is very technical. Since it has come from the industry and the whole thrust behind the Bill came from the financial sector, which wishes to see many more assets unlocked in this way, we should accept his explanation and stand behind that.
My Lords, I express the gratitude of the Labour Benches to the Government for the progress made on the Bill and the valuable update that the Minister has given us this afternoon. I am particularly pleased that the Government have brought back an amendment covering the dormant assets scheme, although I rather agree with the noble Baroness, Lady Barker, that it is a shame that it was watered down, particularly regarding community wealth funds When the Bill was in your Lordships’ House we were able to reach agreement over periodic reviews of the dormant assets scheme and subsequent reporting to Parliament, which will keep us abreast of how much has been raised and how those funds have been put to good use, which is valuable information for us. During its passage through the Commons, the Government outlined some of the options to be explored in the forthcoming consultation that the Minister referred to, including making a specific reference to community wealth funds. Like the noble Baroness, Lady Barker, I would have liked to have seen work beginning on that, but at least we have got it into the consultative framework For our part, we continue to believe that community wealth funds should have significant value in communities across the country, particularly in those areas underserved by other government schemes and/or third-sector organisations. I remain grateful to the noble Baronesses, Lady Kramer and Lady Barker, the noble Lord, Lord Hodgson, and the right reverend Prelate the Bishop of Ely, who spoke in favour of the community wealth fund amendment on Report, as well as to the former Bishop of Newcastle, who I hope is now enjoying the first fruits of the early stages of her retirement.
Is this an appropriate moment to reflect on the roots of where we are today on dormant assets, and to put on record again the part played by Frank Field—the noble Lord, Lord Field—all those years ago in pressing to get this off the ground and to get the original legislation that we are now updating?
I am grateful to my noble friend for his support on that point We on our Benches look forward to the consultation in due course and hope that the department will continue to engage with proponents of community wealth funds. Such funds could play an interesting and, we think, valuable role in levelling up and empowering local communities seeking their own solutions to local problems, a feature of the White Paper that we very much endorse May I use this occasion to ask the Minister what the Government intend to do to ensure that we continue to widen the potential scope for unlocking other dormant assets? Here I am thinking of Oyster cards, proceeds from crime funds, unclaimed pensions and unused insurance. It is worth reminding ourselves that the independent commission report identified some £715 million from investments and wealth management, £550 million from the pensions and insurance sectors, £150 million from securities, and £140 million from banks and building societies. Unlocking that sort of wealth unlocks a lot of power and gives great potential for social benefit. These are not inconsiderable sums of money, and if put in the right place and adapted, used and adopted for levelling up, they could leverage in bigger sums still for the hard-pressed communities that we want to see levelled up in the next few years We are again grateful to the Government for what they have done in improving the Bill. Your Lordships’ House played a valuable and valid part in that process. We are slightly underwhelmed by what has come back, but we are extremely grateful.
My Lords, I thank the noble Lord and the noble Baroness for their remarks, which reflect the cross-party work that has improved this Bill throughout its passage and the interest that it has garnered from all corners for the benefits that it will bring. I am grateful to the noble Lord, Lord Blunkett, for reminding the House of the contribution of the noble Lord, Lord Field of Birkenhead, and indeed many others who have played close attention to this issue for a long time To respond to the questions and points raised by the noble Baroness, Lady Barker, we recognise that the provisions that were inserted on Report in your Lordships’ House were permissive, but the Government contend that Amendment 3 is preferable in three main ways. First and foremost, it fulfils our commitment to consult openly; we have emphasised throughout the passage of the Bill that the consultation must be fair and transparent, and we remain mindful of the need to bring industry along with us alongside civil society and the general public. We cannot therefore agree to any amendment that would suggest that the process would be undercut Secondly, it recognises the widespread support and positive impact that the current causes of youth, financial inclusion and social investment have had. I am sure that noble Lords did not intend to imply that those would be disregarded, but the provisions that were inserted on Report in your Lordships’ House were silent on those and thereby afforded community wealth funds more legislative attention than those initiatives.
My Lords, who is intended to select the investment managers for these funds?
My noble friend asks a good question, on which I will have to write to give him the answer and the full list, if he will forgive me for doing so I was just coming to the third reason why Amendment 3 is our preferred way of proceeding. The provisions inserted in this House would not achieve their objective of speeding up the pace of delivery. We must reiterate that releasing this money will not be immediate; indeed, we anticipate it taking several years for the £880 million to be released, and we do not expect any funds to be available for some time. Undercutting the consultation process would not materially affect the pace of that funding release. The Government have committed to launching the first public consultation on the purposes of the expanded English portion as soon as possible after Royal Assent. We anticipate that it could be live as soon as this summer and will be open for at least 12 weeks I repeat my commitment to write to my noble friend with the answer to his question, and I beg to move.
My Lords, before my noble friend sits down, does he agree that, especially in current circumstances, it would be wholly inappropriate to transfer funds from the TfL balance sheet by way of seizing what are alleged to be surplus Oyster assets, many of which are there because people, often from abroad, choose to leave assets on their Oyster card for when they visit London, which may be only once every few years?
My noble friend raises an interesting point that has not been made hitherto during the passage of the Bill, but I know that he speaks with considerable experience from his time working with TfL. If he allows me, I will write to him with further information about the implications for Oyster cards, which is a matter that has not been covered. It may have been covered in another place, but I have not seen whether that is the case.
I remind the noble Lord that he did not answer my last question regarding reviewing the future of other dormant assets. If he is unable to do so at this point, I am happy to receive correspondence on the topic.
I apologise to the noble Lord, Lord Bassam, for not responding to his question. We share the view that it is important to consider how dormant assets funding can be used most effectively. We are keen to get a wide range of views to help shape our position from Parliament through the Select Committees in both Houses. I will certainly write to him with further details if I am able to provide them I can tell my noble friend Lord Moylan that Oyster cards are not in scope of the Bill, which is why the point has not been raised hitherto. I will, however, take it back, and if there is any further information to furnish him with, I will do so. I repeat my thanks to noble Lords for the cross-party working on the Bill.
My Lords, I should like to update the House on a matter that has generated significant concern. I have noted the strength of feeling in the House on the issue of, and draft guidance on, elected councillors being appointed to integrated care boards. I discussed this matter with NHS England and can confirm that it will revise its draft guidance to remove the proposed blanket exclusion of local authority members sitting on integrated care boards. I am informed that, although ICB members from local authorities are normally likely to be officials, local councillors will not be disqualified for selection and appointment to an integrated care board I welcome this development and hope that it demonstrates that the department and NHS England are actively listening and responding to scrutiny and debate in this House. I have also informed the noble Baroness, Lady Thornton, and asked for a meeting between the Labour Front Bench and NHS England on its preparations.
I thank the noble Lord for that information. Before we continue with the Committee on the Bill, I wanted to raise my concerns on the Floor of the House as to the importance of always treating each other with respect and courtesy. It is not the fault of anyone in this House that despite a majority of 80 in the other place, the Government have taken longer than expected to present several Bills to this House for our consideration. Although backed by the other place—I fully accept that—the Bills are very controversial in nature and quite properly attract considerable attention On a few occasions when considering the Nationality and Borders Bill last night and into the early hours of the morning, our standards slipped. We have another long day ahead of us today and another tomorrow before we all have a well-deserved break in the Recess. I hope that Members on all sides of the House, no matter what position they hold, will respect and pay proper attention to the advice and guidance as set out in the Companion. Committee is a conversation, different from both Question Time and Report. Shouting “question, question, question” from a sedentary position is unacceptable in Committee. Chapter 4 on the conduct of the House and Chapter 8 on Public Bills in the Companion are helpful and informative. I respectfully suggest that all Members regard it as essential reading.
My Lords, I add the voice of these Benches to the protest by the Opposition Chief Whip in the strongest possible terms. I regret that the Government Chief Whip and the Leader of the House were not here to hear it. I hope that they will read Hansard, because I have some questions to put Do the Chief Whip and the Leader of the House accept that Members of this House have a right to be treated with courtesy and not bullied by members of the Government, that they are able to speak when they have a right to do so under Standing Orders, and that they have a right to have their health and welfare considered appropriately? None of that was respected last night when the House sat until 3.20 am I emphasise that my comments are not aimed at the noble Lord, Lord Kamall, who has always been most courteous. I ask the Leader and the Government Chief Whip: do they agree that this is a self-governing House; that the Government, like all Governments, are temporary and cannot override the rights of noble Lords appointed independently of this Government; and that opposition parties have no duty to help the Government get controversial legislation through this House? On the contrary, we have a duty to scrutinise it. This House has built its reputation on intelligent, careful and courteous consideration of issues laid before it. Long may that continue.
My Lords, the Green group would like to throw its considerable weight behind the two noble Lords who have just spoken. What we saw last night was disgraceful, and I hope we never see it again.
My Lords, in the absence of my noble friends the Leader of the House and the Chief Whip, I will respond very briefly to the noble Lords who have spoken by saying that I shall ensure that the comments and questions do reach the Leader, and are treated with appropriate seriousness. We have all heard propositions from both noble Lords on the Front Benches opposite with which there would be wide agreement in the House as to the way we should conduct ourselves. In a spirit of sympathy with many of the comments made, I hope noble Lords will agree that it is appropriate that we discuss this in the usual channels Amendment 284
My Lords, Amendment 284 would implement one of the major recommendations of the Independent Medicines and Medical Devices Safety Review. I will say from the start that I so welcome the government amendments. I thank the Minister and the civil servants for crafting them in such a thorough way There is one glitch, however, about which I have given the Minister forewarning. All the government amendments say that the Secretary of State “may”—and of course that is a very sneaky word. What we want to see is a more robust word: the Secretary of State “shall.” However, I do not want to detract in any way from the burden of my amendment, which is that relationships between the pharmaceutical and the medical device industries on the one hand, and the hospitals, medical research institutes and individual clinicians on the other, can be a huge force for good. Industry collaborating with doctors, researchers and scientists working in the NHS, academia or elsewhere has led to great breakthroughs and great treatments that we have been able to introduce. No one should want to stop that happening—but we do have a right to see where the money goes. Despite all the undoubted good that collaboration between industry and the rest of healthcare brings, we know that there are long-standing concerns about undue influence We need transparency so that trust can be rebuilt where it has been undermined in the past. Voluntary arrangements are all well and good, but they have a drawback: they are voluntary; they are not a requirement; they carry no teeth. So I am encouraged to see that the ABPI, which represents many pharmaceutical companies in the UK, agrees. It is supportive of moving to mandatory disclosure Amendment 284 would make it a requirement for payment by the industry to teaching hospitals, research bodies and individual clinicians to be published by the companies themselves. Such legislation exists and works very effectively in the United States. It is called the Physician Payments Sunshine Act, and it has been in existence since 2010. All the information is held on a public website. Americans can see at a glance which pharmaceutical or device companies have made payments to physicians or others: when, why and how much. It is not just the US which benefits from this level of transparency; various European countries have similar legislation in place, and we should not be the poorer cousin I of course welcome the Government’s own amendments that are grouped with mine and very much look forward to what the Minister has to say about them. I hope we can all agree that transparency, trust and good, safe care go hand in hand. That is why the amendments are so important.
My Lords, I invite the noble Baroness, Lady Brinton, to speak remotely now.
My Lords, this amendment is a companion piece to the previous amendment on declarations of interest that we believe should be made by doctors and other regulated healthcare staff, and ensures that any companies involved in the production, buying or selling of pharmaceutical products or medical devices must publish any payments made to teaching hospitals, research institutions or individual clinicians. Whether someone wants to know about a doctor working with a pharma company, or the other way around, we need a system that provides a golden thread of transparency and accountability Reporting payments or benefits in kind by the relevant organisations and individuals receiving them ensures that the links between donors, recipients and their respective interests are always visible. Although it is, we hope, rare, this is more than just transparency. As in any walk of life, occasionally there is malpractice and fraud, which needs to be prevented. A register such as this helps to remind all those concerned of the rules. I echo the comments made by the noble Baroness, Lady Cumberlege, that “may” is not strong enough: “shall” is important here. The noble Baroness also referred to the USA Sunshine register; and, as I said on the last group of amendments, we definitely need the disinfection of sunlight. Can the Minister say whether any such regulations on industry reporting might be published and brought into force?
My Lords, I invite the noble Lord, Lord Howarth of Newport, to speak remotely now.
My Lords, I thank the noble Baroness, Lady Cumberlege, for tabling Amendment 284. If we are to avoid the risk of corruption and maintain full public confidence, it is vital that there should be full disclosure of payments by commercial interests to hospitals—I would have thought to all hospitals, not just teaching hospitals—research institutions and clinicians. It is a good maxim to follow the money and to be able to do so In regard to research, there has long been public concern about business interests suborning researchers whose judgments and pronouncements influence public understanding, sometimes with important implications for public health. Corrupt scientists certified that DDT and pesticides used in agriculture were not harmful to public health. Exposure of that by Rachel Carson in her book Silent Spring did not end the mischief. Bogus research evidence was paid for for decades by the tobacco industry in a rearguard action to persuade Governments and the public that tobacco was not harmful to human health Today, firms in the food industry deploy spurious evidence and arguments about the damage certain foods do to human health. They have lobbied Government with considerable success to the terrible detriment of human health—it is good that the Bill limits the advertising of unhealthy foods. Scientists, paid by energy firms, have abetted those who deny that climate change is manmade Disclosure payments in regard to research will help, but more is needed. The noble Baroness might have considered—and may yet consider—tabling another amendment needed to underpin research ethics. The data on which research conclusions are based should be held independently. The Engineering and Physical Sciences Research Council rightly now requires researchers to deposit data connected to the research they have funded There is huge pressure, in a competitive environment, on scientists to publish research, and there have been notorious instances of fake science—scientific discoveries announced that were made up and whose results could not be replicated by other researchers. A paper entitled Fake Science and the Knowledge Crisis published by the Royal Society said, “it is especially important that the scientific world as a whole upholds the highest standards of ethical behaviour, honesty and transparency, aiming to sustain the gold standards of research integrity and validated information.” However, the authors go on: “Sadly, a range of forces are working counter to this aspiration.” It is good that the pharmaceutical industry in the United Kingdom supports the transparency that the amendment calls for. We should certainly match the best standards and practice in the USA and Europe The NHS holds huge budgets for drugs, medical equipment and hospital building; big commercial interests are at stake. There is scope for corruption if the system is weakly regulated. The scandal of PPE contracts has led to widespread anxieties about the integrity of procurement. The public want to believe that the NHS is free of corruption, and I am sure it mainly is, but reassurance is needed. As the noble Baroness, Lady Brinton, reminded us. in the old saying, sunlight is the best disinfectant. We need the transparency that the amendment would secure The government amendments are, certainly at first blush, welcome. But, as the noble Baroness, Lady Cumberlege, noted there is a conspicuous difference in language between her amendment, which says that companies “must” publish payments, and the Minister’s amendments, which say that the Secretary of State “may” require or regulate. That slide of language is liable to weaken public confidence. I hope the Minister will explain why he has used the word “may” and not “shall” or “must” The government amendments are as elaborate as the noble Baroness’s is simple, and they prompt some questions. In the Government’s Amendment 312B, subsection (6)(b) states: “The regulations may … create exceptions from requirements to publish or provide information.” What would those exceptions be? Subsection (8) states that the Secretary of State may, “grant an exception … in a particular case.” What sort of case? Earlier in Amendment 312B, subsection (1)(a) refers to “payments or other benefits”. I ask the Minister whether the disclosure requirements he envisages cover benefits in kind, including donations to political parties. whether made by big pharma or small local donors I do not want to be cynical. How can the Minister reassure those who are?
My Lords, I shall try to be brief, otherwise we will be here until 3 am, and I am sure none of us want that. I join the noble Baroness, Lady Cumberlege, in the comments she has made, and I support her amendment and the government amendments. I also agree that the system should be mandatory— not “may” but “shall”— and aligned with the similar system in the United States which I was used to many years ago To try to explore this further with the industry, I have been in correspondence with the ABPI to test how committed it is to agreeing to this being mandatory and that they “shall report” in all aspects. I will read what it sent me: “ABPI are supportive of the intention to move to a mandatory model of disclosure for payments made between industry and relevant individuals including Health Professionals, and” all healthcare organisations and research institutions. It continues: “We believe proposals to introduce a legislative mandate are an opportunity to further strengthen the pharmaceutical sector’s existing transparency mechanism for branded medicines”— that was the point I made to it, that its system needs to be transparent, mandatory and easily accessible by patients and the public. It goes on: “Our briefing outlines a number of considerations and learnings based on ABPI’s experience running Disclosure UK, which since 2016 has supported transparency around transfers of value made by the innovative pharmaceutical industry to relevant individuals including Health Professionals … and Healthcare Organisations” I asked for a similar comment from industries that market medical devices, and I understand that a similar commitment is made by those companies too I therefore support the noble Baroness, Lady Cumberlege, and support the Government’s amendment. However, I hope that the Minister can confirm that the loose word “may” is not intentional and they intend to make this mandatory.
My Lords, I rise very briefly, rather enjoying this reunion from our debates during the passage of the Medicines and Medical Devices Bill of a group of people who taught me a great deal about dealing with legislation. We also looked at an amendment that was very like this. There is a phrase I use often: “Campaigning works”. I should make that “Campaigning by the noble Baroness, Lady Cumberlege, works particularly well”. We are seeing real progress here, although, as many noble Lords have already said, we need to make sure that this is mandatory and not some kind of voluntary extra When I was working on the then Medicines and Medical Devices Bill, I spoke to a number of people from the industry. They were very much concerned about the fact that they wanted tight rules that apply to everybody, otherwise those who cut corners and push the envelope have a competitive advantage against people who doing the right thing, being absolutely open and not flinging money around. Many parts of the sector are keen on tight rules It is interesting that it has taken us so long to get to this point when the noble Baroness, Lady Cumberlege, presented ways of doing this back in the Medicines and Medical Devices Bill. We have not heard the Government using their favourite phrasing “world-leading” or “world-beating” very often in this area. As the noble Baroness, Lady Brinton, said, we are very much trailing behind other countries in our transparency here I will make one final comment. We have a huge problem with public trust—we see this on the street outside your Lordships’ House quite often. Absolute transparency and openness is crucial and, as we heard in Oral Questions earlier, the fact that some companies have been able to profiteer hugely from the pandemic causes more damage to public trust. We need to tackle that with as much of the sunlight of transparency and openness as possible.
Briefly, I also support these amendments, including the Government’s comprehensive amendment, but I was spurred into action by the noble Baroness, Lady Bennett. It is worth saying that when it comes to public trust, a survey of 28 countries conducted at the end of last year found that British doctors were more trusted by people in this country than doctors in any of the other 27, so we start from a well-founded position of high trust. However, trust in a profession is of course founded on the basis that people will act in a way that puts the interests of the person they are looking after first, and these amendments help to deliver that I want to use the opportunity to try to draw the Minister out slightly on a couple of questions supplementary to those which my noble friend Lord Patel raised. Sunlight may indeed be the best disinfectant. but we have two types of shade going on at the moment. The first is that, through the voluntary register which the ABPI established in 2017, we have just under a third of eligible doctors who are not reporting. Therefore, obviously to the extent that the Government commence these amendments on a mandatory basis, that will deal with that aspect of shade; the 68% will become 100%, which will be most welcome The second type of shade relates to the scope of the payments that have to be declared. Here, I think the Government’s amendment is potentially very suitably broad. However, it would be wonderful to hear the Minister confirm that it will cover payments to all NHS bodies, not just to trusts or indeed teaching hospitals; that primary care will be in scope; that it will cover the independent sector as well as the NHS; that it will cover payments made to patients’ organisations; and whether, in time, the Government will consider extending it to payments made to health professionals other than doctors. I conclude by simply reporting that when you ask people in this country which profession they most trust, the answer is actually not doctors; it is nurses.
My Lords, I have my name on this amendment. I will not repeat all the points made by other people so far, but I point out that using the words “shall” or “must” avoids any argument over threshold. The problem with having a word that is not definitive is that there would be arguments over what would and would not have to be declared To put a slightly positive note on the whole situation, I say from clinical experience that patients want to go into trials and to contribute to the level of knowledge. Very often, people who are seriously ill will say, “I know that I won’t benefit from it, but I hope that other people will by me going into this trial”. But they want to know that the trial is properly conducted, that everything is open, that nobody is profiteering from their generosity and that they are genuinely contributing to the body of knowledge across the country. When people who I know socially contact me because they have been given a potentially devastating diagnosis and have been referred to somebody, the question is always, “Are they the best in the field?”, which is often followed up with, “Are they doing research in the field?” and “Are they completely up to date?” So often, when people realise that they are deteriorating, they will ask whether there is a trial that they can be entered into This goes much further than just being sunlight. This amendment would support future endeavours and innovation in the country and would encourage people to enter into studies.
My Lords, very briefly, we welcome the Government’s proposals on mandatory disclosure of payments, a companion piece to the previous debate that we had, as has been pointed out As noble Lords have always stressed, greater transparency is highly desirable and a very good thing. I am grateful to the Minister for listening to the voices of stakeholders and parliamentarians on this. Indeed, nine out of 10 medical professional bodies think that patients have a right to know if their doctor has financial or other links with pharmaceutical or medical device companies and they support stronger reporting arrangements, as contained in the amendments. I am grateful for the briefing I have received from the ABPI, which, as we have heard, also supports mandatory disclosure I also note that Amendment 312D refers specifically to the consultation with the devolved Administrations in Scotland, Wales and Northern Ireland and to obtaining the “consent of the Scottish Ministers, the Welsh Ministers or the Department of Health in Northern Ireland … before making provision within devolved legislative competence in regulations relating to information about payments etc to persons in the health care sector.” We would welcome the Minister reassuring us that full consultation is under way and setting out the timescales involved On Amendment 284, the non-government amendment leading this group, the intention of the amendment and the arguments put forward by noble Lords are extremely persuasive. The requirement for companies involved in the production, buying or selling of pharmaceutical products or medical devices to publish any payments made to teaching hospitals, research institutions or individual clinicians is a sensible measure that would complement the Government’s package, and I await the Minister’s thoughts on it, including on the one glitch underlined by the noble Baroness, Lady Cumberlege, on moving from “may” to “shall”.
My Lords, I thank all noble Lords who took part in this debate, especially my noble friend Lady Cumberlege for her work on the independent review of medicines and medical devices, and other noble Lords who were involved in that. I know that she worked tirelessly to make sure that patients and their families have been heard and I pay tribute to her and her team. I also thank her for her lobbying—or reminding—me of the pledge that I made when I first became a Minister on championing the patient I welcome my noble friend’s amendment to increase transparency and promote public confidence in the healthcare system. The Government fully support the intention behind the amendment. That is why I will be moving Amendments 312B, 312C, 312D, 313B, 313C and 314ZB in my name. Before I do so, let me answer some of the questions All these amendments relate to the transparency of payments made to the healthcare sector. The Independent Medicines and Medical Devices Safety Review led by my noble friend Lady Cumberlege listened to the brave testimony of over 700 people to understand where improvements needed to be made to make the healthcare system safer for all patients, especially women. The Government have given the review deep consideration and accepted the majority of its nine strategic recommendations and 50 actions for improvement To improve transparency, the review recommended that “there should be mandatory reporting for pharmaceutical and medical device industries of payments made to teaching hospitals, research institutions and individual clinicians” The amendments deliver on this recommendation by enabling the Secretary of State to make regulations requiring companies to publish or report information about their payments to the healthcare sector. The clause covers any person performing healthcare as part of their duties, benefiting patients and building on initiatives by regulators and industry. I hope that partly answers the questions raised by the noble Lord, Lord Stevens The amendment also allows for the Secretary of State to make regulations requiring that the information be made public and make further provision about when and how the information must be published. This could include requiring self-publication or publication in a central database. That ensures that we can adapt the system to improve reporting as necessary. To ensure that companies fulfil the obligation, requirements introduced by the regulations can be enforced using civil penalties There are benefits to this duty applying UK-wide, aligning with the approach taken by the pharmaceutical industry with its Disclosure UK system. As the noble Baroness, Lady Wheeler, referred to, the clause contains a statutory consent requirement, so we will work closely with the devolved Governments to develop regulations following the passage of the Bill. We will also work with patients, industry and healthcare providers to create a system that enhances patient confidence while maintaining a collaborative, world-leading UK life sciences sector A question was raised about the issue of “shall” versus “may”. The Government have not tabled these amendments in bad faith; we would not have tabled these amendments if we did not intend to work with them. It is the intention of my right honourable friend the Secretary of State to bring forward regulations under the clause to make sure that there is transparency. If that is not reassuring enough, perhaps between this stage and Report there can be some conversations to make sure that noble Lords are assured. It is for these reasons that I ask your Lordships’ Committee to support these amendments.
Can the Minister confirm what he just said: that it is the intention to bring regulations? How strong is that intention? The “may” creates a problem.
My Lords, can I add a question about timeframes to that? When can we expect the regulations?
I have two points to make to the noble Lord. First, I have been advised that this is standard wording. Secondly, I have made the assurance at the Dispatch Box. It is here; it is on public record that the Government intend to bring forward regulations. On the timeframe, I will either write to noble Lords or arrange a follow-up meeting. I will make sure that there is some communication to bridge that gap.
My Lords, I thank everybody who has taken part in this debate, particularly my noble friend the Minister for the work he and his officials have done to bring this into the Government’s remit. That is so important, because I learned through the passage of the Medicines and Medical Devices Act that we could incorporate the patient safety commissioner and some of the other things we wanted to achieve only through government amendments. My heart leaped when I saw these amendments and I thank the Minister I still think these amendments could be improved and it is important that we get the word “shall” in, or “might” or whatever others have said, rather than “may”. I was looking at the Oxford English Dictionary. My father-in-law was the publisher to the Oxford University Press, so the dictionary is very close to my heart. The dictionary says that the verb “shall” relates to the right or sensible thing to do, whereas the verb “may” is defined as a possibility.
My Lords, this amendment has been several years in gestation. It dates back to the case of Charlie Gard in 2017. There have also been other cases that suggested we must do better than rush to the courts, with all the anguish that causes to parents and clinicians alike, let alone the expense to the NHS and others. That is why I am proposing that there should be independent mediation where there is a serious disagreement between loving parents and the clinical team caring for a child who is not Gillick-competent Difficulties arise when the child’s prognosis seems hopeless to clinicians but the parents do not share that view and want to know that they have tried everything. The clinicians may feel that the best interests of the child would be for the child to be allowed to die, but the parents can perceive this as life being ended, even though the child would have already died without all the care and interventions that had been put in place. In other words, when death occurs, the child dies of their underlying condition. The clinicians have not euthanised the child. However, pressures in the media towards doctors administering lethal drugs and euthanasia have portrayed death as a solution, and there is a perception that our overwhelmed NHS is desperate to clear beds, save money and, sadly, even cover up shortcomings However, no one has interests when they are dead; they are a corpse. By contrast, the parents feel that any improvement is worth having, and that it is in the best interests of the child to continue to experience their love and affection and to try a novel therapy that seems, on balance, possibly to do more good than harm—that is, it does not cause significant harm to the child—and, if there is no improvement, it is easier for them to accept the natural death of their child In Charlie’s case, a novel treatment seemed to offer hope, a nucleoside powder to be added to feeds of mitochondrial depletion syndrome. This did not involve invasive procedures and was estimated by New York-Presbyterian Hospital and Columbia University Irving Medical Center’s Dr Hirano to have a 56% chance of success. That is important because it is over 50%. In 13 out of 18 children with TK2 mitochondrial depletion it had appeared to be beneficial but it had not been tried in RRM2B, the variant that Charlie had. This was not a distressing invasive treatment from a dubious medical centre, and the parents would gladly have had Charlie as part of an N of 1 trial, accepting failure but knowing that they had done everything. The total cost of a three-month trial of nucleoside powder would have been about £3,000. Contrast that with the costs of over £250,000, made up of £205,225 costs to Great Ormond Street Hospital, almost £35,000 that his parents had to fundraise for, and £32,500 spent by Cafcass. That seems to be the norm. Cafcass also reported that in 2016 it was involved in 18 parent-doctor disputes that ended up in court. If these costs are indicative, that suggests around £4.5 million from the NHS each year No one should underestimate the intense emotional anguish of these parents in such cases, nor the stress and difficulty for the clinical team. The requirement that the parents can seek a second opinion means that they can do so swiftly, with full access to their child’s clinical record. This recognises the speed with which children can deteriorate when very ill Currently a second opinion may be sought only by a clinician. This part of the amendment would put the parents on an equal footing to ensure that they could seek one too. If there is a dispute between those with parental responsibility then, as now, the court would have to be involved. It is for the courts to veto inappropriate demands, and no clinician would ever be forced to administer a treatment that they did not view as being in the best interests of the child Rather than clinicians and parents being pitted against each other, with press interest and the risk of campaigning groups further polarising views, the amendment proposes that independent mediation must be offered. It needs to be independent to remove the suspicion that the mediator is entering the discussion biased towards the clinical establishment and away from the parents. Mediation is different from arbitration; it must be voluntarily entered into, using mediation processes designed to avoid legal disputes. It may help the parents to realise that the clinicians’ decisions are right after all and in the best interests of the child. Indeed, such realisation is evident in some of the very sensitive judgments given by the court The amendment would focus on the balance of probabilities. There is no absolute line because each case is different. If the dispute remained intractable, the case would proceed to the court, where the court would have to take into account all the evidence and consider whether the risk was significant. “Significant” is not a precise medical term; it would leave it to the court to decide whether the risk of harm involved in the parents’ proposal was sufficiently significant to interject across their parental responsibility and prohibit the proposed treatment. It would create the legal test of “disproportionate risk of significant harm” to assess the balance of factors, replicating the legal test already used by social services under the Children Act 1989 to consider whether to remove the child from their parents’ care. This legal test would sit before, rather than replace, the current “best interests” test, which is very broad and can be subject to different interpretations Contrary to the misleading briefing that some Peers may have received, the legal test in the amendment would not allow a person with parental responsibility to force any intervention. The court must always be, and would remain, free to objectively judge the issues. In the rare cases where disputes still reach litigation, access to legal aid would ensure families can access justice without being forced to rely on outside interest groups to fund the case The aim of this amendment is to solve some major problems for the Government. It would ensure resolution of some distressing prolonged disputes between loving parents and clinicians, disputes that benefit no one, and would reduce the likelihood of cases escalating to the courts and the millions of pounds in litigation costs. I beg to move.
I advise the Committee that the noble Baronesses, Lady Brinton and Lady Masham of Ilton, have indicated that they wish to take part remotely. I call the noble Baroness, Lady Brinton. I am sorry, I thought it was in alphabetical order. I shall therefore call first the noble Baroness, Lady Masham.
My Lords, in supporting Amendment 287 I cannot think of a better person to have moved it than my noble friend Lady Finlay of Llandaff, professor of palliative care. If there is a dispute, a difference of opinion, between a parent and a child with a life-limiting illness and a doctor responsible for the child’s treatment, it can be heartbreaking. The stress and anxiety the parents can be put under can be unbearable if the doctor in charge is invincible. It is important to ensure that the views of the parents and anyone else concerned with the welfare of the child are listened to and considered The amendment would put mechanisms in place and highlight benefits that Charlie’s law can provide for both parents and doctors when a major difference of opinion arises. Most parents will do anything for their children in a critical situation if there is a slight hope that the treatment might work and benefit their child. Sometimes the treatment is abroad and not available in the UK. This happened to Ashya King, a young boy who had extensive surgery for an aggressive brain tumour. His parents wanted to take him to the Proton Therapy Center in Prague for treatment, but there was a dispute with Southampton hospital. At that time, there was no proton treatment in the UK. His parents took him from the hospital to Spain via France, landing up in prison in Spain and making a court appearance. This traumatic struggle hit the headlines and, in the end, young Ashya did go to the Czech Republic for treatment. How much better it would have been if there had been an agreement to save a humiliating situation for everyone A great deal of work and care has gone into this amendment. I thank my noble friend for all she has done, and I hope the Government will accept the amendment.
My Lords, I will be very brief, as the noble Baroness, Lady Finlay, has comprehensively explained why her amendment, Amendment 287, which seeks to create a dispute resolution mechanism in children’s palliative care, is important. There is no doubt of the challenges experienced by parents who are facing the dreadful news of their child’s deteriorating health and likely end of life, and who are trapped in a process that makes them feel as if their requests for new, different or more treatment are being refused by the hospital, not least if they feel that the hospital is acting as prosecutor, jury and judge against their wishes However, as the noble Baroness, Lady Finlay, has outlined, one must also sympathise with doctors and other healthcare professionals who believe that they are doing the best for the child in these distressing circumstances. For these cases to end up going through the courts is not a good dispute resolution process. The noble Baroness, Lady Finlay, has also outlined the extreme costs to the NHS and to the parents of the child. We now need a system, even if rarely used, which parents can feel is independent but medically expert to help to resolve and mediate the dispute when the relationship between them and the hospital has broken down.
My Lords, I added my name to Amendment 287, and I thank my noble friend for tabling Charlie’s law. Charlie Gard’s case was painful for all involved, including his parents and the doctors at the hospital where he was receiving treatment. Protracted disagreements can have far-reaching effects, particularly when they are played out in public, as has happened in a small number of cases. For the child, it can mean a delay in a decision about their care and treatment. For the parents and family of the child, there can be enormous distress, feelings of loss of control, and financial strain. Healthcare staff can also experience stress and anxiety, and they might be subjected to intimidation The parents of Charlie Gard, Alta Fixler, Alfie Evans, Tafida Raqeeb, and many others, wanted to do what any parent would do to try to improve their child’s condition and alleviate their child’s suffering. However, it is evident that the parents in such cases do not feel adequately heard and listen to when discussing options about their child’s treatment. This results in the devastating conflicts that lead to litigation. With this amendment, parents would be given the chance to discuss their views openly with the clinicians and hear the views of those clinicians, too Too often in my career, I have heard distressed parents described as “difficult” and “impossible to work with—nobody can work with them”. These are grieving parents who are looking for someone they can trust to help them. Mediation can sometimes help parents, and professionals to acknowledge that the consequence of conflict has been to shift focus away from the needs and welfare of the child. An independent mediation process can help to facilitate less confrontational conversation while supporting both parties. Thus, it provides support for both. Mediation across England is inconsistent. It needs to be available in every NHS hospital where conflict emerges, and at an early stage, so that the lives of very sick children such as Charlie are less likely to escalate to court In the rare event that a child’s case escalates to court, the amendment seeks to provide access to legal aid to ensure that families are not burdened with the financial strain of legal representation. Currently, families in this position are effectively punished, both financially and emotionally, through litigation for simply doing what they strongly believe is in their child’s best interest. Although this amendment makes provision for legal aid, the main purpose is to keep cases such as Charlie’s out of court, rather than arming everyone to be prepared to enter into long-winded and expensive legal disputes. Parents would not automatically win the right for their children to be given novel treatment, but the amendment would rebalance the dialogue towards resolution, rather than towards costly and distressing legal battles that do nothing to help the parents’ grief I also strongly support the introduction of the significant harm test. This legal test would focus on whether an alternative credible medical treatment could cause a child “disproportionate risk of significant harm” when deciding whether a parent can seek that treatment for their child. A key point here is that no medical professional would ever be required to give care or treatment that they did not view as in the best interests of the child. The legal test is already widely used under the Children Act 1989 and should be applied to cases such as Charlie’s in the future. I am strongly in support of this amendment and commend it. It is a just and necessary package to support parents and doctors, and I hope the Minister will be in a position to welcome it.
My Lords, I have also put my name to this amendment. I congratulate the noble Baroness, Lady Finlay of Llandaff, on bringing it forward We need a broad debate on the balance of responsibility for children as between parents and the various arms of the state. Sadly, these have come to include the medical profession. Today is not the day for that debate, but this amendment does something to give a voice to parents who find themselves in dispute with doctors, often unaided, unsupported and dependent on voluntary contributions, so that they have at least a voice and a status in decisions about their sick child. I very much hope that the Government will be able to support this.
My Lords, I do not very often become involved in health matters, so I hope that your Lordships will indulge me on this occasion Five years ago, when Charlie Gard’s parents were doing everything they could to fight for his life, I, like everyone else, was moved by their determination. Even so, my instincts were to accept what the Great Ormond Street hospital doctors were advising and what the judge decided was in Charlie’s best interests. I fall into the camp which believes that, in such an unimaginable, heartbreaking situation, the objective and dispassionate professionals are best placed to make a decision that no parent would ever want to have to make for themselves. When Charlie sadly died, I was moved by his parents’ dignity in coping with their heartbreak in the midst of a legal battle and in the full glare of publicity. Probably like many others who felt so sorry for their loss, I soon moved on and thought little more about this tragic case Then, just over a year ago, during the Christmas lockdown, when I was out on my daily walk, I heard an interview that Charlie’s mother, Connie Yates, gave to Andy Coulson on his podcast, “Crisis What Crisis?” For well over an hour, I listened to Connie tell her story. She spoke clearly, intelligently and reasonably about their experience as a family during the year in which Charlie lived, and about all that she and her partner, Chris, went through in their fight to be heard and taken seriously by doctors and lawyers. From listening to Connie, I learned that their expectations were well-informed and reasonable but that as the dispute continued, the situation became increasingly fraught and distressing —to the point where their efforts to be heard as parents made them feel that others believed they were guilty of not wanting the best for their baby. Even so, she was at pains to praise all the medical staff who had cared for Charlie at Great Ormond Street Towards the end of the interview, Connie told Andy Coulson that a Private Member’s Bill was being sponsored by the noble Baroness, Lady Finlay, that would bring to life what she called “Charlie’s law”. The noble Baroness has described this law. When Connie talked about it, I was struck by how modest and reasonable it is to create a legal framework to allow for resolution, without the added stress and trauma that they had faced during the time when they were fighting for Charlie. It also struck me very powerfully that, in developing this framework, Connie had taken the time to contact and listen to the doctors who had opposed her, so that she could better understand them and their position. That is worth emphasising again: this young woman is so reasonable that she wanted to create a law that would work for the benefit of the medical profession, not just parents As I finished listening to Connie, I vowed that I would support that Bill whenever it appeared. But as we know, Amendment 287 is here in lieu of that Private Member’s Bill, and arguably is a better way to introduce this measure, rather than having to battle with the usual procedural risks that are associated with private Members’ legislation. I am delighted to lend my support to this amendment. I am sure there are technical matters within the amendment which might require discussion between the noble Baroness and the Minister, but I urge my noble friend to take this seriously Given the ordeal that Charlie’s family faced a few years ago, when no one in authority listened to them, I am sure it would bring them a huge amount of comfort to know that they are being heard now. That is my main point and motivation today. Of all the things we must do if we are to level up this country, listening and taking seriously people who feel ignored or misunderstood is the most important aspect of that agenda, and in this context it costs us nothing I also say to Connie Yates, should she be listening today or read the record subsequently, that she is one impressive woman. When I heard her speak, and listened to what she had to say, she changed my mind and made me realise I had been wrong not to listen more carefully a few years ago.
My Lords, I welcome the amendment put forward by the noble Baroness, Lady Finlay, and will make what have been described as technical points. While I think this is a very good base, there are some things that I think need looking at I trained as a commercial mediator some years ago, and practiced for a couple of years, before I was signed up by David Cameron to do a different job. The first point I make is that there is a difference between commercial and family mediation. It is important to realise that. I notice that the amendment says “where the authorities consider that the difference of opinion is unlikely to be resolved entirely informally” I suggest that it cannot be the authorities that decide; it has to be offered equally to both sides. That is why it will not be appropriate for the authorities to provide the mediation service. There are a couple of good, independent mediation services, including the Centre for Effective Dispute Resolution and the Alternative Dispute Resolution Services, but if it is to be a system which has the confidence of both sides, it must be independent of the authorities The next point I would like to make is this. There is a big difference between family and commercial mediation, and the difference is fundamental. Commercial mediation produces a legal, enforceable result; family mediation produces an agreement which has no legal force. One of the points which must be addressed if this is to be brought to fruition is what is to be the status of the mediation agreement. That is fundamental I was a commercial meditator and in East Anglia, where I was, we had a practice of commercial mediators going out also with family mediators to get an experience of the full area. One of the most distressing points about family mediation was the way in which families would bicker, eventually reach some sort of compromise, and, before you were through the door, decide they were not going through with it. If mediation is to work, it will have to have some sort of resolution at the end where the medical profession and the family can say, “This is settled”—not where one side can say, “Well, I don’t really like the outcome”. This could be the case, particularly in a complex medical situation, where you have a number of doctors involved and maybe two or three of them are part of the mediation but there is then someone further up the line who says, “No, I just don’t accept this”. There has to be a dispute resolution which has a legality about it.
My Lords, there is considerable merit in an independent dispute resolution service. I will be very brief, because I believe that at the heart of this is the following: for over two decades, this country has been a signatory to the UN Convention on the Rights of the Child, which recognises that a child has its own rights, independent of its parents. So I was very pleased to hear the noble Baroness, Lady Finlay, refer to the best interests of the child, which will be based on their rights under the convention.
My Lords, I thank the noble Baroness, Lady Finlay, for this amendment and other noble Lords who have contributed to this highly emotional and compelling debate about the welfare, care and medical treatment of critically ill children. I also thank Emma Hardy MP for ensuring that this key issue was debated in the course of the Bill’s passage through the Commons and the work that she, other MPs and noble Lords have undertaken with parents and medical staff to help build and develop the framework that is set out in the amendment where care and treatment are disputed: Charlie’s law, in memory of Charlie Gard The amendment seeks to mitigate conflicts at the earliest stages, provide advice and support, and improve early access to independent mediation services to prevent the traumatic and bitter legal disputes that we have all seen all too often. Noble Lords have highlighted these, as well as the benefits that the step-by-step processes set out in the amendment would provide for parents and doctors, which are of course central to the consideration of the child’s welfare and best interests. In particular, providing families with access to legal aid if court action takes place would, as the noble Baroness, Lady Finlay, pointed out, ensure that they do not have to rely on raising funds themselves, or on the financial support of outside interests Today’s debate has been powerful but has also demonstrated the difficulties with trying to address and resolve such deeply complex issues within the context of an already overloaded and skeletal Bill. Like other noble Lords, I have received the excellent briefing from the Together for Short Lives charity, which does such remarkable work on children’s palliative care to support and empower families caring for terminally ill children. While supportive of much of the amendment, the charity has what it terms “significant reservations” about proposed new subsection (4) on the issue of amending the court’s powers in relation to parents pursuing proposals for disease-modifying treatment for their child after the final court decision So, while there is obviously considerable support for the measures set out in the amendment, as we have heard today, the reservations about this and other provisions in the amendment, from Together for Brief Lives and other organisations, emphasise the need for the continued dialogue and discussion that we are not able to have today but which noble Lords have made clear is needed. This has been an excellent debate and I hope the Minister will be able to find supportive ways of taking this vital issue forward.
My Lords, the noble Baroness, Lady Finlay, has brought a vital and sensitive debate before the Committee, for which I for one am very grateful. At the heart of each of these difficult cases is, as she said, the well-being of a child, and that principle has to remain uppermost in everyone’s mind. While the views of parents and guardians are routinely considered in everyday care, occasionally difficult disputes will arise. When they do, we should carefully consider how best to protect the interests of the child. I will start by saying that I fully agree with the noble Baroness that any failure to listen to the concerns of parents or a guardian would be bad practice However, I have a concern about the practical impact of this amendment. In cases of the care of children with life-limiting illnesses, the amendment would place the views of parents and guardians above those of clinicians and—let us be clear—the courts, which have a statutory obligation to act in the best interests of the child. Establishing a default presumption in favour of the parents’ views would fundamentally change the current balance. It would move away from the impartial assessment of the individual child’s best interests being paramount based on all the evidence in each specific case I understand the view that parents know what is best for their child and their wishes should be paramount. Sadly, though, I am afraid that I cannot fully agree with the proposition advanced in the amendment. It is sometimes the case that desperate parents in these tremendously difficult circumstances are subject to the flattering voice of hope and, as a result, are not acting in a way that is necessarily in the best interests of their child To protect the child, it is right that when every effort at resolution has been unsuccessful there is recourse to a judicial process that can impartially assess all the evidence as to what treatment is best for the child. I also fear that it would be difficult for a clinician to determine, in the wording of the amendment, “anyone else” who has an interest in a child’s care. In considering the provisions of the amendment, I note that a child’s medical data can already be provided to parents following a subject access request, so we do not feel that legislation here is necessary. I absolutely agree that specialist palliative care teams should be part of the multidisciplinary team for any child or adult with a complex life-limiting illness; their involvement is an integral part of good practice, and I would expect referrals in such situations. However, I do not agree that it is necessary to put that into law Let me say something about mediation. I listened with care to my noble friend Lord Balfe. We know that mediation can and often does play a vital role in facilitating better communications and creating a space where voices on both sides of a dispute can be heard in a non-adversarial way. Unfortunately, that does not provide a solution in every dispute. The Government are supportive of the many excellent mediation schemes already available, including through charities and the private sector. We agree that parents and clinicians should be able to access such schemes where they wish to do so. However, we are not convinced that legislation is the answer to these thankfully rare but nevertheless tragic cases The current lack of statutory prescription means that mediation can be tailored specifically to meet the individual needs of families and their children, clinicians and hospitals, reflecting the unique circumstances of each case. There is currently a wide range of work and research into avoiding such protracted disputes and improving the approach to managing conflicts, with the aim of promoting good, collaborative relationships between parents and healthcare professionals to seek resolution without lengthy and costly legal battles. Furthermore, on those rare occasions where disputes are heard before a court, the amendment seeks to extend legal aid. Legal aid is already available for best interests cases, albeit subject to a means and merits test I understand the strong views on the amendment across the Committee. I understand that these issues are ethically charged and I take them seriously. However, I also believe that the current approach properly balances the views of parents and guardians with those of clinicians and, above all, with the paramount importance of the best interests of the child in question. The sensitivities around this subject are acute but I hope that what I have said has clarified why I do not feel able to accept what I know is a well-intentioned amendment.
My Lords, I cannot hide my deep disappointment at the response from the Government, because I think this situation will only get worse unless we recognise the difficulty of decision-making when you are faced with a child whose prognosis is poor, who has a very rare condition, where nobody has a test to predict what will happen, and where the parents feel that they are not being listened to Currently in the NHS we have clinical teams that change rapidly. The one person—often—who has continuity and has seen the child day after day is the mother; sometimes it is the father who is with the child all the time. But you get different clinical teams, and you may have a gap of five days between one doctor visiting and coming back, and they may say: “Oh my goodness, what a change.” But when you have a handover, you do not get a complete picture.
My Lords, I wholeheartedly support Amendment 297A in the name of the noble Baroness, Lady Hodgson, and Amendment 291D in the name of noble Lord, Lord Hunt, but I will speak only to Amendments 290 and 291 in my name in this group. Amendment 291 calls on the Secretary of State to “publish a plan for dementia care” which recognises “the different types of dementias and the specific care needs of each type”. It also places a duty on local authorities and the “NHS integrated care system to implement this plan for their own areas” Some 70% of care home residents and 60% of home care recipients in the UK have some form of dementia. When we talk about the crisis in social care and the urgent need for social care reform, one of the major drivers of this crisis is the growing number of people living with dementia, with one in 14 people over 65, and one in six people over 80, living with some form of dementia. By 2040, the number of people living with dementia is expected to have grown to 1.5 million. Globally, the World Health Organization reports that over 55 million people are currently living with dementia; by 2050, this number will have grown to 153 million It is easy to get caught up in the numbers, but we need to remember that these are usually people with family and loved ones who often become carers, even once the person with dementia ceases to recognise their loved ones, and in many cases spend prolonged periods of time in a state of distress and even anguish. It is not just unpaid carers who struggle to help those with dementia: Skills for Care has recorded that only 44% of care staff have any form of training in dementia. Social care staff should have tier 2 training in the dementia training standards framework to support the delivery of more personalised care for people with dementia As co-chair of the All-Party Parliamentary Group on Dementia, I work closely with the Alzheimer’s Society. This organisation has been working with the small team at the Department of Health and Social Care that has been trying to develop a new national dementia strategy. With no co-ordinated strategy for dementia since 2020, and with the conditions of people living with dementia deteriorating during the pandemic, the strategy needs to be published promptly. There also needs to be dedicated funding to deliver it There are over 100 types of dementia. We know that the most common are Alzheimer’s disease, which accounts for over 50% of dementia cases; vascular dementia, which accounts for roughly 20% of cases; Lewy body dementia, which accounts for just over 10%; and frontotemporal dementia—FTD—which affects 2%. Each type of dementia has its own symptoms and has different care needs. Also, some forms of dementia can develop tragically at a younger age, and some may cause deterioration of memory and cognitive function for many years Dementia is a condition that uniquely cuts across social care and healthcare, because it has no disease-modifying treatment, meaning that the main support someone receives is through the social care system. As I said on Amendment 235 on the social care cap, there is a clear inequity where, if someone is diagnosed with cancer the NHS will cover the full treatment cost, whereas if someone is diagnosed with dementia they may require many years of care, which will cost them and their families thousands of pounds, as this is not covered. That is made much worse by the fact that, despite best intentions, the care being delivered may not even be suitable for the type of dementia the person needs care for. That brings me to my next amendment. Amendment 290 requires the Secretary of State to ensure that health professionals are aware of the benefits of the social prescribing of music and art for those with dementia, especially at the onset of symptoms to preserve brain health, and protect against cognitive decline, loneliness and fear in the months and years leading to diagnosis. Over 200,000 people are expected to be diagnosed each year. A third more do not even have a diagnosis, so the arts have a vital part to play for them. When I spoke in support of the amendments in the name of the noble Lord, Lord Howarth, on social prescribing, I and others who spoke on that group outlined the many benefits of social prescribing for the social exercise of arts activity, which empowers patients to preserve their brain health. This amendment specifically outlines the importance of this for those affected by dementia as part of an overall care plan, so links to Amendment 291 If we look at the four main types of dementia I spoke of earlier, we can see how different forms of art can play an important role. The charity Arts 4 Dementia has found that, for those with Alzheimer’s disease and vascular dementia, participating in music, dance, visual arts, poetry and drama, and trying new techniques and art forms, stimulates interest and joy, relieves anxiety, preserves confidence and improves cognitive functioning. Some musicians continue to play for years, artists to paint and dancers to dance. People with frontotemporal dementia are better able to read words and music and are more interested in dialogue around pictures and the mechanics than creating art. Musicians and artists with frontotemporal dementia can often continue to enjoy singing, playing and painting for years after diagnosis. Researchers have found that those with Lewy body dementia are happier to be involved in social arts programmes, poetry and dressing up than physical drawing, or going to arts events, galleries, concerts or the theatre rather than performing. For those with Parkinson’s-related dementia, dance can be helpful.
My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely. I invite her to speak.
My Lords, Amendment 297D is very important. Unacceptable practices of bullying and intimidation of the most vulnerable people must not take place. I thank the noble Lord, Lord Hunt of Kings Heath, for bringing this amendment to the Committee. I support it I congratulate “Panorama” and those who worked undercover to expose these unacceptable wrongdoings in the past in care homes, nursing homes and hospitals for residents who are very vulnerable. The programme showed one girl who was a resident and had asked to be looked after by female staff only. This did not happen, and the film showed men taunting her and seeing her get upset, as they carried on with their bullying and tormenting. All sorts of abuse has been exposed in some of the homes, which were spread across the country, such as Whorlton Hall in Barnard Castle, Winterbourne View near Bristol, Ashbourne House in Rochdale, and many, many others. This is not easy work and staff need to be well trained and suitable candidates, with patience and dedication During Covid-19, this situation has been a great risk. Many of the residents are a long way from home and they are very isolated. There should be independent inspections and spot checks; there should not be closed doors. There should be regular safeguarding in the regulations I hope that the Government will take this seriously. There should be a duty of candour so that whistleblowers are not victimised when reporting what they think is bad practice. I look forward to the Government’s reply, and I hope it will be helpful.
My Lords, the noble Lord, Lord Howarth of Newport, is also taking part remotely. I invite the noble Lord to speak.
My Lords, I pay tribute to the noble Baroness, Lady Greengross. No one has done more than she has to champion the elderly and the frail. I support all the amendments in this group but will speak only in support of Amendment 290 There is much evidence of the benefits of creative activity to dementia. Some of this was set forth in the Creative Health report, and more recently in the document A.R.T.S for Brain Health, edited by Veronica Franklin Gould, the founder and now president of Arts 4 Dementia. I pay tribute to her passionate and indefatigable work. As noble Lords, we have the opportunity to exercise our aging brains in trying to understand amendments to the Health and Care Bill. Others at our time of life take even greater pleasure and benefit to their health through music, painting, poetry, dance, drama and other art forms. Of course, that range of cultural opportunities is there for us too—the cultural scope of Peers is not limited to “Iolanthe” Veronica Franklin Gould has very well said: “music-making provides a tool for a total brain workout” The mental activity of learning poetry, performing drama and creating painting or craft opens new neural pathways and connections. Research shows that creativity benefits the plasticity of the cortex, enhances cognitive abilities—perception, motor function and memory—and improves cardiovascular strength. In more humane language, engagement with the arts allows creative self-expression, offers sociability, reduces stress and increases resilience—all leading to joy and achievement. These are profound and measurable benefits. Arts 4 Dementia offers programmes in creative arts venues for people, from the onset of early symptoms of dementia. I draw the attention of the House to the very important work of Manchester Camerata, in partnership with the University of Manchester, in its Music in Mind dementia programme There can be years between the appearance of early symptoms and the moment at which someone receives a memory assessment and a diagnosis. This can be a lonely and fearful time, during which the arts can be particularly sustaining. Creative activity slows the deterioration of the brain. The benefits of engagement with creative activity continue for a long time Professor Martin Marshall, chair of the Royal College of General Practitioners, has recognised this. He said: “The shift for us in general practice is not just engaging with the medical activities which are core, but to engage with social activities, and make sure the two are aligned.” Will the Minister accept amendments to this legislation to ensure that the structures and requirements that it creates encourage, facilitate and drive the shift of which Professor Marshall speaks, and bring the crucial support of the arts and other forms of social prescribing to people with dementia and others? If he does not believe that the legislation needs amendment, will he explain how, as presently drafted, it will drive that change?
My Lords, the noble Baroness, Lady Brinton, is also taking part remotely. I invite the noble Baroness to speak.
My Lords, I thank the noble Baroness, Lady Greengross, and others for the amendments in this group, which would help transform some of the long-standing problems in social care, as well as improve the quality of life of patients and their families, especially those who care for them. I will speak to Amendment 297D, in the name of the noble Lord, Lord Hunt, which seeks the establishment of a review into institutional abuses in care settings within six months of the passing of this Act Amendment 297D talks about the effects of restrictive visiting and eviction notices “on the emotional, psychological, social and physical health of service users, and on the well-being of service users” and their families. Obviously, “restrictions on visiting” has taken on a whole new meaning throughout the Covid-19 pandemic. I note that the Rights for Residents campaign group has secured more than 270,000 signatures on a petition for a law that ensures that “every resident has the legally enforced right to the support of an essential visitor” Currently, homes are meant to support an essential caregiver for all residents—but this is advisory and some homes are still imposing blanket bans on visits. That may be because they have some Covid infections inside the home, but that is not universally true There is still no clear picture of how visits are going on in care settings. These could be difficult for residents with dementia, for example, if there is only a very small window for visiting—and perhaps it is just not the right time or the right day for them Unlock Care Homes is also doing work on this, including highlighting good practice. It is important to remember that most care homes are not just doing their best, they are doing really well with looking after their residents, despite the constraints of the pandemic, staff shortages and burnout Time and again, investigative journalists are uncovering practices going on in care settings that are inhuman, breach vulnerable residents’ human rights and damage patients’ mental, physical and psychological well-being. The noble Baroness, Lady Masham, referred to a long list, and that list is indeed shameful A series of scandals led to a CQC report into restraint, seclusion and segregation for autistic people and people with a learning disability being commissioned in 2018. It was published in October 2020. The report said: “We found too many examples of undignified and inhumane care in hospital and care settings where people were seen not as individuals but as a condition or a collection of negative behaviours … We also found that a lack of training and support for staff meant that they are not always able to care for people in a way that meets those individuals’ specific needs. This increases the risk of people being restrained, secluded or segregated.” However, the Government have not yet commissioned a review of the entire sector, to understand and learn from the causes and poor practices that have resulted in those institutions failing their residents. Commissioning such a review would demonstrate that the Government really want to bring a halt to these practices.
My Lords, Amendment 297A is in my name and those of the noble Baronesses, Lady Smith and Lady Cumberlege, but I am also supportive of the other amendments in this group With people living ever longer, looking after older people so that they can stay healthier for longer is critical, as is ensuring that they receive the care they need and have a dignified and secure old age. Amendment 297A seeks to introduce a new clause that will not only lower, from 75 to 65, the age at which every patient is assigned a named GP but sets out to ensure that named GPs will actually have to meet and have some knowledge of each patient they are responsible for, and will communicate directly with them and the family. We need to encourage everyone to take responsibility for their health. Having good and regular health checks is an essential part of the prevention of ill health, as well as leading to earlier identification of conditions and earlier interventions. I am sure that other noble Lords who are doctors will put me right, but I was once told that 65 is an age where things can start to go wrong. Therefore, it is important to start monitoring people’s health and being able to identify changes from this age. This will deliver better outcomes and may also enable people to stay at home and lead a fuller life for longer. The role of the GP in all this is absolutely critical.
My Lords, in speaking to my Amendment 297D, I thank the noble Baronesses, Lady Masham and Lady Brinton, for their support. However, I also express my general support to the noble Baroness, Lady Greengross, the noble Lord, Lord Howarth, and the noble Baroness, Lady Hodgson, for their amendments. The common theme of this collection of amendments is the question of how we support vulnerable people My amendment is about the experience of many of us who have seen the harm caused to our loved ones in care homes during Covid when visits were not allowed for so long. Even now, it can be difficult to visit in some homes because of the Covid restrictions that continue or where a member of staff or visitor has Covid and then 14-day long impositions are imposed. It is a bit rich when one hears in the media that all restrictions are being lifted, because for many of us, in practice those restrictions have not been lifted at all The Joint Committee on Human Rights in its report on care home blanket bans and other excessive restrictions recommended that regulations for care and treatment should include a requirement to ensure face-to-face contact wherever possible between residents and the people most significant to them. I do not underestimate the difficulties faced by care homes in the past two years. They have faced huge challenges. My personal experience is that many of them have risen to the challenge and provide high-quality care. But even before the pandemic, serious concerns were growing about the use of care home visitor bans to punish relatives for complaining about standards of care. Indeed, as far back as 2016, the “Victoria Derbyshire” programme reported that hundreds of care homes were guilty of this method of what it described as institutional abuse. In 2019, the Relatives & Residents Association was coming across at least one case per week and warned the problem was increasing. One woman found her mother dressed in other people’s clothes, left in her own urine and with her hair unwashed for weeks. The Local Government and Social Care Ombudsman upheld the daughter’s complaint, reporting that after raising her concerns with the care home, she and a doctor were prevented from seeing her mother when they tried to visit. The care home later told the ombudsman the ban was because of a previous incident reported to the police of the daughter and her partner’s behaviour, but could not provide any evidence that an incident had occurred or was reported to the police As visiting restrictions are, hopefully, going to be relaxed in the weeks ahead, I am afraid we have the prospect of seeing more residents’ families being victimised in this way. Helen Wildbore, director of the Relatives & Residents Association, has found from its helpline calls that relatives and friends play a vital role in spotting potential human rights violations, particularly around abuse and neglect. When they are locked out by bans, people in care lose crucial support: their advocate and confidante—they might be the only person they tell about their concerns. Sometimes residents are even threatened with eviction or actually evicted in reprisal for complaints about their care. The Joint Committee on Human Rights was told about a family whose mother was threatened with eviction after they merely asked to discuss concerns with the head office of a care home These are the kinds of abuses my amendment seeks to tackle and get over the problem that regulations are not sufficient. These regulations may specify the standards of care against which care providers are regulated by the CQC through its inspection process, but the CQC is not going to pick up individual complaints, so there is a gap. There is a strong case for a statutory duty of care sitting alongside CQC regulations to require care providers to facilitate such contact with families as is reasonably practical and to prohibit evictions where non-vexatious and non-repetitive complaints are in progress. In my amendment, I am not proposing that. All I am asking for is a review; an independent review charged with examining these options. I hope that the Government will agree that there needs to be some reflection on what has happened and how we can prevent this kind of abuse in the future.
My Lords, I should like to speak to the amendment proposed by my noble friend Lady Hodgson From the age of five, I was a child of general practice; it was my world. I accompanied my father on home visits, patients came to our house and the telephone rang constantly—my mother was the secretary and took all calls. My father loved his patients and they loved him. He knew them inside and out, and their families as well. He attended road traffic accidents, of which I have to say there were plenty, and he delivered babies at home—he never lost one. I remember him telling me one day when he came back from a birth that it had been a very difficult birth, but the mother praised my father for having helped her to produce a very healthy little boy. “Doctor”, she said, “we will call the baby after you. What is your name?” My father replied, “Lambert”. “Right”, said the father, “we will call our son Tom.” I mention this only because maternity has been the love of my life, and in this area relationships are critical to a safe and good experience. In my youth, maternity was part of general practice After being appointed much more recently to chair the maternity review for England by Simon Stevens—as he was then; now, of course. the noble Lord, Lord Stevens of Birmingham—I was determined to introduce relationship care, sometimes called “continuity of carer”, where the final “R” stands for relationship. We have much respected and credible research from the Cochrane Collaboration in Oxford which shows that women who receive relationship care are less likely to have a preterm birth, less likely to lose their baby before 24 weeks and less likely to lose their baby overall We now have in the NHS 371 relationship teams with 2,355 midwives in place where the midwife provides all three elements of midwifery care: prenatal, birth and postnatal care, which is sometimes called follow-up care. In the James Paget Hospital, 90% of maternity care is provided through continuity and it has a waiting list for midwives to join the hospital. Through this initiative, we are transforming maternity care. The women and their families value hugely the relationship with their known midwife, and the midwives who are providing this care absolutely know that what they are doing is the right way to work. They would leave their hospital and go to one that provided such care if their hospital gave it up Listening to my noble friend Lady Hodgson, is not this what she seeks for general medical practice? Her amendment is well drafted and reflects an interesting report produced by the Royal College of General Practitioners, entitled The Power of Relationships: What is Relationship-based Care and Why is it Important? and published in June last year. In his foreword, Professor Martin Marshall, chair of the college, writes: “COVID-19 has radically changed the face of general practice. We have moved from a predominantly face-to-face service to one in which most consultations are delivered remotely, either by telephone or video call … Remote consultations are certainly here to stay. For many patients, they enable quicker and more convenient access to a GP appointment, which of course is hugely important.” But then he asks the following questions: “But should speed and ease of access be our primary measures of effectiveness? They are certainly easier to quantify. But what about the quality of care? What about the relationship between doctor and patients which, to me, is the essence of general practice?” He goes on to say that “The evidence for the benefits of a trusting relationship is compelling—better patient experience; better adherence to medical advice, fewer prescriptions, better health outcomes, better job satisfaction for doctors and even fewer deaths.” Indeed, he says that the relationship between the patient and their GP is as important as the scalpel is to a surgeon: “If relationships were a drug, NICE would mandate their use.”
My Lords—
I understand that I have overrun so I will say to my noble friends on the Front Bench that we should value general practice. We should build with the best. We should learn from the best. I know that there are hundreds of general practices; it is up to us to applaud them and cherish them and ensure that we see another era of general practice which is different but which values patients and relationship care.
My Lords, I support Amendment 297A in the name of the noble Baroness, Lady Hodgson, to which I have added my name. I shall speak briefly, given that that I am only an irregular participant on this Bill. This amendment is particularly important. I come to an understanding of general practice from a very different perspective from the noble Baroness, Lady Cumberlege, as somebody who has only either received the care of a doctor or seen my parents receive or not receive that care When I was a young baby, I was extremely ill. I realise in these days where people talk about conspiracy theories about vaccines that this might be something that should not go into Hansard, but I had a reaction to the smallpox vaccine and my mother went to the public telephone box and called the doctor. The family doctor who came was equally concerned and brought a consultant from the local children’s hospital to our home to see me. That would be the sort of gold standard that we could only dream of now. However, it is the sort of care that we need to be looking to in terms of having a family doctor or a doctor in the community who actually knows individuals. As the noble Baroness, Lady Hodgson, said, this is particularly so for the over-65s, when a range of issues might be beginning to affect them The situation today is so very different. The Minister in answer to an Oral Question a few weeks ago repeatedly said that everyone has the right to see a doctor in person and the doctor must give a clinical reason for refusing to have an in-person consultation. I assure him that this very rarely happens, because ordinary patients cannot simply ring up and speak to the doctor and say, “I need to see you”. They will get to a receptionist who will triage them and decide whether they feel that it is appropriate for this person to see the doctor, or to have a telephone conversation or maybe some other virtual consultation There is a real need, particularly for older people, to have the opportunity to know that there is a doctor who understands their medical situation and can join up the dots. Somebody who seems now to have low blood pressure might have that because of the previous set of medication that another doctor has prescribed for them. If somebody rings up and gets a telephone consultation or is sent a prescription without proper assessment, the danger is that the whole picture is lost and individuals’ lives can be blighted because they are not getting the medical care they need This is not the fault of any individual practice or of any individual general practitioner. However, we have ended up with a system where that traditional idea of a family doctor who knows their patients has disappeared, and somehow we need to get an element of that back. The other three amendments in this group in many ways fit as part of a suite because, if your GP knows that maybe you have early onset dementia or another sort of dementia and you need different types of therapies, they will know what to recommend Furthermore, if your GP knows that you have gone into a care home, visits you and thinks, “That person has lost a stone and a half in weight in the last six weeks”, a GP who knows the individual will be able to respond. Somebody who randomly sees a patient will not. I strongly support the amendment in the name of the noble Baroness, Lady Hodgson, and the other amendments in this group Finally, I note that the amendment in the name of the noble Baroness, Lady Hodgson, comes immediately after the amendment in the name of the noble Lord, Lord Forsyth of Drumlean. If anyone were minded to support assisted dying, they should certainly support the following Amendment 297A, because how on earth could any doctor reasonably say that we can sign somebody off when they have no idea who that individual is?
My Lords, I would like to use one example to illustrate the importance of Amendment 291 in the name of my noble friend Lady Greengross, and her call for a dementia care plan. It relates to the second point: that the plan must recognise the different types of dementia and their specific care. It is also true that it needs to recognise the different groups of patients affected by dementia and their needs I am thinking from personal experience of people with Down’s syndrome. Noble Lords may know that something like 50% of people with Down’s syndrome who reach the age of 60 also have Alzheimer’s; there is some genetic connection between the two. However, the field of dementia has not really caught up with this yet. This is a developing field. The real importance of the plan that my noble friend advocates is that it constantly develops as knowledge develops about particular groups of patients and how they are affected The truth today is that patients such as the person I am thinking of are too often let down by the system, because too few clinicians understand the links between the two diseases and the particular needs of people with Down’s syndrome who also have Alzheimer’s.
My Lords, I support the majority of these amendments, but I want to reflect on something that my noble friend Lady Greengross said about the lack of treatment for people with dementia. In fact, there are emerging treatments, and having had the benefit more than 40 years ago of working at a second referral unit at the Maudsley Hospital, I know that people who present with dementia so often also have quite severe depression at the beginning of recognising that they are losing some of their cognitive function. That can be treated very effectively and people can be enabled to live much happier lives for the first part of their care I want to give one other example. As a clinical nurse, I was called to help a unit that had severe problems. I do not think there was any maltreatment, but there was certainly a lack of competence in care in the place that I visited. There was a gentleman who was tall and extremely thin who, they told me, had two people with him all the time because he was so agitated. They could not get him to sit down to eat and his relatives did not want him to have any medication I am pleased to tell noble Lords that I got involved and we got a consultant psychiatrist in. The family were persuaded that a small amount of anti-psychotic medication might improve the quality of this man’s life. It did; his agitation significantly reduced and he was able to sit to eat. He lived for only another nine months, but those nine months were much happier than they would have been without that medication Although I firmly believe in all the social prescribing that we are talking about, we do not necessarily need a dementia care plan; we need a dementia care and treatment plan with an associated workforce development plan. Will the Minister seriously consider those issues?
My Lords, I support Amendments 297A and 297D. I will be brief, because we have already had a very lengthy and wide-ranging debate. The amendment in the name of the noble Baroness, Lady Hodgson, is important, and she has set out the case for a named GP very well. As people become older, they tend to develop a more complicated and interrelated set of healthcare needs, and a GP who has that overview and can liaise with the family is extremely important I will add two quick points that have not come up in the debate so far. First, it might sound like a statement of the blindingly obvious, but for this very desirable amendment to happen, there need to be enough GPs in the system. Frankly, I am concerned that, despite commitments from the Government to increase the number of GPs by 6,000 by 2025, there is no current plan for how this will be achieved. The number of qualified full-time equivalent GPs is smaller today than it was in 2015 Secondly, in relation to health inequalities, it is matter of real concern that GP practices serving more deprived populations receive less funding and often serve much larger numbers of patients than GPs in more affluent areas. I looked at the figures, which I will not repeat, and there are huge disparities in the size of the lists that they serve. I feel that passing an amendment of this sort on continuity of care would most likely benefit patients in the most deprived areas. With this debate, and if this amendment were accepted, I hope that there would be more pressure on the system to relieve that very unhelpful trend Amendment 297D is an extremely important amendment, and I am very grateful to the noble Lord, Lord Hunt, for raising it. I do not want to repeat what he said, save to say that I would see this review as a first step towards strengthening the rights of care home residents and their relatives to visit, to keep in touch and to spot the signs of abuse. We all understand how hard the pandemic has been. Most care homes have done their level best, despite a lack of access to PPE and testing in the early days. None the less, many of the visiting restrictions that have been imposed have far too often been blanket restrictions, rather than restrictions that took individual cases and individual needs into account. We had the repeat Statement from the Minister last week on vaccinations, and we were told that there is now no limit on the number of visitors allowed in care homes. I can tell noble Lords that I have not been able to visit my mother inside her care home since before Christmas, because there have been continuous outbreaks of Covid. Often it affects only two people, but that is enough to shut the care home down. This is why there needs to be a more proportionate and individually judged approach to these things Finally, if we had a review of this sort and could strengthen rights, I would hope that we could also strengthen the human rights of care home residents, including self-funded residents who currently have no recourse to the Human Rights Act, which is fundamentally unfair.
My Lords, I attached my name to Amendment 290 in the name of the noble Baroness, Lady Greengross, but I support all these amendments. The comments made by the noble Baroness, Lady Watkins, on Amendment 291 were particularly important as an improvement, but it is still crucial that this is all looked at holistically I will confine my remarks to Amendment 290, which is about social prescribing for dementia, focusing in particular on music and the arts. We have discussed social prescribing extensively and I will not go back over that ground. However, I will note how much the Alzheimer’s Society website stresses the importance of music and the arts for the quality of life and care of Alzheimer’s patients, and dementia patients more broadly I want to join up a couple of dots. The amendment talks about ensuring that health professionals are aware of the benefits, but I would like to word it much more strongly to ensure that this is regarded as an essential part of care, not a luxury add-on extra—“If we can find the money we’ll do this nice thing”—which all too often is how it is regarded. On that point, I link back to my Amendments 237 to 239, which were debated in a previous Committee session, on ownership of care homes and the flow of funds into care homes, and the fact that 16% to 20% of money in the average care bed is going into financial instruments. If we took two-thirds of that money and put it into more traditional medical, social-type care, and put in some more money for carers to be paid a little better, we would still have some money left for this kind of social prescribing. If we look at that in this context, we see how we join all this up. We really need to stress that social prescribing is an essential part of care, not some luxury add-on extra In one more effort to join up the dots, I will make the point that often in your Lordships’ House different people work on different areas and things are not joined up. We have some noble Lords, particularly on the Cross Benches, who do a lot of work in the creative industries, which, financially, are suffering enormously through the Covid pandemic. There is something to be done here in joining up with government-funded projects that help people in the creative sector do some training and get some skills, to enable them to take their skills, knowledge, enthusiasm and energy into social care—thereby spreading economic prosperity and improving people’s quality of life. Let us try to join these things up a bit more and not look at them in silos.
My Lords, I am very reluctant to intervene in this long debate, but I have travelled down from Manchester specifically for this group of amendments. I have not been involved with this Bill previously, partly because of my own ill health, and also because of my teaching outside London, but I will make a short intervention here My noble friend Lord Hunt has raised the very important issue of the nature of interaction between human beings, which is absolutely essential in considering some of the issues raised by the noble Baroness, Lady Greengross, and others. I am not going to advocate music therapy, dance therapy, exercise therapy or art therapy here, because, speaking as an academic, one of the problems here is that we simply do not understand the truth of the interaction that makes these things work. One of the big problems is that really good randomised controlled trials are still very much lacking I am reminded, for example, of a very good randomised controlled trial, by Dr Nair in Australia, of quite a large number of demented people in a care home to whom he played music. From his results, there was no question but that the music, which was extremely tranquil baroque music from sixteen different composers, actually made them more disturbed, more sleepless, more angry, less able to eat their food and more likely to come into conflict with the nursing staff So it is very unclear what is actually happening in the brain. During the debate today we have heard claims made about changes in brain structure, but the truth is that we have not done sufficient research to really be clear about this. The research is very expensive, and one of the problems is that it involves very complex things such as time on scanning machines, for example—functional MRI. There is simply not enough research going on into the dementias—whatever they are—to fully understand the nature of what we are talking about I am not suggesting that we do not do music therapy but, speaking with my interest as an ex-chairman of the Royal College of Music, I say that we have seen that some of the things we do simply do not work or, if they do, it is not understood how. One of the things with music therapy, for example, is that you see individual patients interacting with somebody else, and it may be that the interaction is more important than the actual music. For example, watching musicians play in person may be better than watching them on a screen or just listening to music. There is a lot of work that needs to be done here before we can make big claims These are important amendments that are well made and well put, but we need to be really clear in debating this legislation that, until we understand the mechanisms—the phenotype—of what we are discussing, we have to recognise also that much more money is required for research into the dementias. That is really critical and there is a risk here of making legislation that will not fundamentally change the real problem that we are facing.
My Lords, I rise to say that Amendment 297A is obviously very desirable. But, as an economist, I have to say: if we implement this, who will be deprived? GPs’ time is limited and GPs’ numbers are limited, as we all know. Through much of my life in the NHS, all that the GP did for me was prescribe what I needed. It took about five minutes, and the GP did not even have to talk to me; they could look at the computer to find out who I was and what I was doing. It is, quite rightly, only people over 65 who need a caring GP, so we have to devise a system for those who do not need extensive consultation and familiarity with the GP but can be dealt with in a summary fashion. Perhaps we could have junior and senior GPs, so that we could release the senior GPs for this sort of work and have other people for prescriptions and simple tasks.
My Lords, I was going to speak for two minutes but now I am going to speak for only half a minute. I have one question for the Minister. I know that his department has a small team developing the National Dementia Strategy. Can he can tell us whether any additional capacity is being planned to add to that small team doing this important work? Frankly, without a national strategy, the new ICSs will not be able to measure their performance in their dementia care plans against a national standard. The matter is urgent, because the position of people living with dementia has worsened during the Covid-19 pandemic and, while we are trying to tackle the backlog of treatments for patients with physical health needs, we must not forget those with dementia.
My Lords, I thank the noble Baroness, Lady Greengross, for tabling her amendments, which ensure that we consider dementia care in respect of this Bill and return to recognising the impact that the social prescribing of music and arts can make to dementia sufferers, particularly for patients at the onset of symptoms—although I also heard what my noble friend Lord Winston said about the research needed on this issue. Noble Lords have on many occasions stressed their strong support for Music for Dementia and Singing for the Brain, and it would be good to hear from the Minister what progress is being made. We have also had extensive debates on the importance of social prescribing, and of the arts across health and social care settings, so, again, I think we do not need to repeat what has been said On Amendment 291, the key thing is the call for the duty to be placed on each local authority and integrated care system to implement the National Dementia Strategy for their own areas. It is a timely reminder of the need for the promised National Dementia Strategy: can the Minister provide a publication date for it, and update the House on its progress and on the increased funding that the Government have promised will be provided for the implementation of the dementia care plan My noble friend Lord Hunt’s Amendment 297D is a stark reminder of the Joint Committee on Human Rights’ concerns over the visiting bans operated in some care homes before the pandemic, following relatives’ complaints about their loved ones’ treatment and standards of care. As the noble Baroness, Lady Brinton, stressed, we know that during the pandemic itself the ban on outside visits of relatives and friends caused huge anxiety and suffering among residents and their families alike, and it is very welcome that visiting rules have now been eased, although the need for maintaining PPE, testing and infection control routines and constant vigilance continues.
My Lords, this has been a long debate but it has touched on a number of different and important subjects. I join noble Lords in paying tribute to the work of the noble Baroness, Lady Greengross, and her work I turn first to Amendments 290 and 291. I reassure noble Lords that the Government are absolutely committed to the rollout of social prescribing across the NHS. We exceeded the targets in our manifesto and the NHS Long Term Plan of 1,000 new link workers by 2020-21 and are aiming for at least 900,000 people to be referred to social prescribing by 2023-24 NHS England, the National Academy for Social Prescribing and Music for Dementia have produced guidance for social prescribing link workers to expand music prescriptions for those with dementia. The department has also published two resource guides for social workers on embedding music in personalised social care plans for people living with dementia and their carers While the Government are committed to promoting the benefits of social prescribing of music and arts for people living with dementia, it would be inappropriate to focus in the Bill on one form of therapy. Instead, we rightly provide scope in the Bill for the NHS to undertake a range of social prescribing Turning to Amendment 291 and the need for a dementia strategy, I reassure the noble Baroness and others that the Government are committed to publishing a new strategy this year. As part of this, we will be looking at arts and music-based interventions. More broadly, the strategy will focus on the specific health and care needs of people living with dementia and their carers, including looking at dementia diagnosis, risk reduction and prevention, and—importantly, as noble Lords have mentioned—research. Our priority is for the strategy to be credible and shaped by a range of experts, including people living with dementia and their carers. At the end of last year, we established a stakeholder-led task and finish group to help develop the strategy and deliver it in a timely way Moving on to Amendment 297D, we fully agree that visits from loved ones are of vital importance to care home residents’ health and well-being. DHSC guidance emphasises that visits to care homes should be facilitated, based on individualised risk assessments. Care home residents should also be supported to nominate an essential caregiver, who may visit in most circumstances, including if the care home has been closed to visiting for any reason There is an existing process in place if a resident or their family are concerned that guidance is not being followed. We encourage anyone with concerns to raise them. That can be done both with the care home, which has a legal obligation to operate a complaints procedure, and with the CQC. The CQC will follow up on concerns and take regulatory action if needed. It has provided mechanisms for people to feed back on concerns over care. The CQC responds to all concerns passed to it, and can receive concerns anonymously via representative groups, such as Rights for Residents. Where those concerns have named the provider or service in question, the CQC has followed up the cases. Some 54 concerns regarding care home visiting arrangements have been raised during the pandemic. The CQC gained reassurance in all cases that visiting is now in line with guidance. In 12 cases the CQC secured this assurance by inspecting the service My department has not seen any data or reports on evictions of residents following complaints against care homes. If a care home were taking such action, it would be in breach of guidance. A complaint should not lead to a resident being asked to move to a different home, and the terms of evictions and processes followed should comply with consumer law, as per the CMA guidance. People should feel confident that complaining will not cause problems for them I recognise this has been a difficult time for care home residents. However, the existing powers in legislation are robust and give protection to those who need it. We therefore do not feel at this time that an independent review is necessary I turn to Amendment 297A. Continuity and oversight of care is crucial in meeting the needs of all patients, including those aged over 65. That is why, since 2015, all practices have been required to assign their registered patients a named, accountable GP. This GP must lead in ensuring that any GP services that they are contracted to provide, and are necessary to meet the patient’s needs, are co-ordinated and delivered to that patient. Practices must take reasonable efforts to accommodate patients’ requests to be assigned a particular accountable GP and must endeavour to comply with all reasonable requests to see a particular practitioner. Practices are also required to take steps each year to identify any registered patient over 65 who is living with moderate to severe frailty. The practice must undertake a clinical review of any such patient and provide them with any other clinically appropriate interventions The noble Baroness, Lady Tyler, is right that delivering on this is linked to the number of GPs in the system. I assure her and others that the Government remain committed to growing the number of doctors. There were 1,841 more full-time equivalent doctors in general practice in September 2021 compared to September 2019. In 2021-22, a record-breaking number of doctors started training as GPs. I therefore consider that existing regulations already address the welcome intention of my noble friend Lady Hodgson, and I regret that the Government cannot accept the amendment for that reason I hope I have given noble Lords and noble Baronesses some reassurance on the amendments in this group and that the noble Baroness will feel able to withdraw the amendment.
My Lords, I have listened to an extraordinary range of speeches and addresses. People have spoken from the bottom of their hearts. I am very moved myself by what I have heard. I thank all colleagues and Ministers who have spoken today. I will look very carefully at the record of today and come back, but, in the meantime, I beg leave to withdraw the amendment.
My Lords, Amendment 292 is in my name and that of my noble friends Lady Lawrence of Clarendon and Lord Boateng, and the noble Baroness, Lady Bennett of Manor Castle. I thank noble Lords from across the Committee and the People’s Vaccine Alliance—Saoirse Fitzpatrick of STOPAIDS, in particular—for their advice Last year, the Prime Minister lauded the successes of the UK’s vaccination programme as a result of “greed and capitalism”, but the virus-busting vaccines, treatments and tests were in no small part funded by taxpayers, supporting the work of scientists at universities, research institutions and small-scale biotech companies across the world. Over €93 billion of public money has gone into developing vaccines and therapeutics. The AstraZeneca vaccine developed at Oxford University was over 97% publicly funded Public investment at the beginning of the research process assumes the biggest risk at the point when there is no certainty that a product will be successful. It is only when effectiveness is clearer that big pharma swoops in and uses exclusive intellectual property rights to hold a monopoly over that product in the market. The risk is socialised but rewards are privatised and, crucially, monopolised. The NHS is paying twice for medicines: once for research and again through procurement Some estimates show the public paying for up to two-thirds of drug development, including research and clinical trials. Drugs are getting only more expensive, with estimates that the NHS procurement bill increased by nearly 10% over the last couple of years, to £20.9 billion. Yet there is still no guarantee of production at the volumes required to meet demand or that patients will be able to access health technologies at affordable prices, nor that scientists will be able to make use of the data, knowledge and technologies generated in the research process to develop improved follow-on products. Due to the opaqueness of the pharmaceutical industry, it is very difficult to track public funding. The terms of agreement, actual costs and prices charged—all these are kept behind closed doors. The amendment seeks to change that for health technologies developed with public funding, as well as to define emergency procedures to expedite a sharing of research, data and intellectual property in the case of a pandemic. By adhering to the “public health condition”, the Secretary of State and all public authorities would ensure that “a proportionate share of any intellectual property resulting from the public funding … is subject to Crown ownership and openly licensed … a proportionate share of any private profit from public funding is re-invested in further public health-related research, and … public funding is published and taken into account in … the setting of reasonable prices for the public procurement of medicines domestically and internationally.” Open licensing would allow production in a competitive generic market, bringing down the price of medicines. A study published in the BMJ showed how the price of oncology drugs could decrease by between 75% and 90%. We saw this with ARVs for HIV/AIDS, and how crucial that was in fighting that pandemic by reducing costs from over $10,000 per person per year to under $100. Reinvesting a proportion of profits could ensure that they go towards health priorities rather than financialised practices or the development of me-too drugs—sufficiently different to obtain patent protection but without added therapeutic value, compared with existing products There is recent precedent for more transparency and conditionality around public funding in Italy and France, while the European Union is looking at how to track public funding and measure societal impact. Even our Government are beginning to think about public interest conditions for future pandemic tools to ensure access in low- and middle-income countries. This is a recommendation of the UK’s pandemic preparedness partnership’s 100 Days Mission report, published during the UK’s G7 presidency There are also circumstances where there has been no public funding but the price or volume restrictions of a product are preventing widespread access. In that case, the amendment calls for a recommitment to the use of pre-existing public health safeguards within the Trade-Related Aspects of Intellectual Property Rights—TRIPS—Agreement. These flexibilities include the use of compulsory licences when intellectual property monopolies prevent access to a medicine. They enable a Government to license another manufacturer to produce a generic or biosimilar version of a patented health technology at a much lower price. These can be used at any time by any WTO member; they have already been implemented more than 100 times between 2011 and 2016 The need to use flexibilities has never been greater, with ever more drugs coming to market with a price tag of over £1 million per dose. For example, the NHS is currently paying a list price of £1.795 million for a single dose of Zolgensma to treat spinal muscular atrophy—SMA. It is the most expensive drug in the world, despite public and philanthropic funding. A Crown-use licence would permit the Government to allow a third-party manufacturer to make a biosimilar version at a discounted price We must also stand with other countries in the face of huge and unconscionable pressure from big pharma when TRIPS flexibilities are used. In 2007, we supported the Thai Government when they applied for a compulsory licence to produce a more affordable antiretroviral drug to treat HIV and were met with a threat from the pharmaceutical company AbbVie that they would lose access to all its other products. We could show leadership and solidarity again. Multinational corporations, whether tech, pharma or other corporations that noble Lords have considered in your Lordships’ House in recent times, warrant international democratic governance, regulation and restraint. Hence the last part of the amendment In future pandemics, we must not remake the continuing mistakes of this one. Monopolies which profiteer from poverty and sickness are bad enough at the best of times. But in a global emergency, when so many ordinary citizens, health workers and ethical businesses have sacrificed so much by way of livelihoods, liberties and lives, such conduct is totally amoral. Pharmaceutical companies’ refusal to share manufacturing know-how has led to grotesque vaccine inequity. Only 10% of people in low-income countries have received a single jab. So the amendment stipulates immediate action as soon as the World Health Organization declares a pandemic. The temporary—I stress, temporary —waiver of UK registered patents, industrial designs and other intellectual property rights relating to undisclosed information necessary for combating a pandemic, and emergency compulsory directions to enable domestic manufacturing, would mean that any company within the UK with the capacity could be making these products. It would allow products to be shipped internationally and allow companies across the world access to the critical data and rights to produce pandemic tools at scale for their own people The Indian and South African proposal to temporarily waive the TRIPS agreement is supported by more than 100 countries. It is only opposed by the European Union, Switzerland and our own Government. The waiver could allow the 100-plus potential mRNA producers across Latin America, Asia and Africa access to critical clinical data and manufacturing know-how required to make mRNA vaccines, without fear of litigation in the worldwide race to beat variants of the virus New treatments are in high demand, and high-income countries have already brought up the lion’s share. We will be facing a treatment apartheid on top of a vaccine one if the United Kingdom and others do not shift their position urgently. Just last week, it was reported that the director-general of the WTO, Ngozi Okonjo-Iweala, was hopeful of a breakthrough in the long-standing waiver discussions. However, it is incredibly important that any compromise is not overly restrictive geographically or in terms of products or types of intellectual property The UK Government must stop saying that a waiver will take too long to implement while simultaneously blocking its agreement. They should end their group hug with the EU, Switzerland and big pharma and start embracing and empowering the global south and wider world. The line that temporarily waiving TRIPS will stifle future innovation ignores the public money that funded the riskiest parts of developing vaccines and treatments, and how innovation works. Sharing research data and clinical trials results with great minds around the world creates the conditions for competitive collaboration, vying to have the best results but also sharing lessons learned and supporting each other. This is how we have made great leaps in the past, as with the human genome project, where public funding supported a global collaboration which has changed modern science This is about improving access to affordable, life-saving health technologies for our NHS and the world to combat pandemics and improve health. It is about ensuring that we get the best from our biomedical innovation, especially when we are investing so much money and expertise and putting human beings through clinical trials. In a global health emergency, not sharing life-saving knowledge is as wicked as blocking access to emergency exits from a crowded building in a raging fire. I beg to move.
My Lords, I call the noble Baroness, Lady Brinton, who is taking part remotely.
My Lords, I am a former trustee of UNICEF UK and, before that, Christian Blind Mission, a global disability charity. I have seen first hand the two-tier system of access to global vaccines and medications. It is a pleasure to hear the noble Baroness, Lady Chakrabarti, set out how, through her Amendment 292, the UK can fulfil its global public health responsibilities for investment in research into vaccines and other health technologies and how, in an emergency, companies developing these goods would also be required to help. She has introduced it in her usual effective and persuasive way. I suspect I am not alone in valuing her contributions to your Lordships’ House Throughout this pandemic, the Government have rightly congratulated themselves on their investment in research on the range of vaccines developed in rapid time and also the extensive, rapid clinical trials assuring their safety prior to approval. However, less satisfactory has been the UK Government’s view about their international moral responsibilities as a member of the OECD and one of the high-income countries with access to much-respected vaccination and pharmaceutical research. The World Health Organization has said right from the start of the pandemic that no country is safe until all are safe, but low and middle-income countries have not just not had the advantage we have; we have reneged on our promises to them over the last two years The UK Government repeatedly tell us that they have donated cash to Gavi and COVAX, but the reality is that we need to help those countries now to become able to manufacture their own medicines and vaccines in the light of emergencies such as future pandemics. The old adage of “Give a child a fish, feed them for a day. Teach a child to fish, feed him for ever” is so true. Here, the fishing rod is the skills to manufacture and sell medications in a future pandemic The TRIPS waiver, or intellectual property waiver, is supported by the World Health Organization and many large charities and countries, including the USA and others. However, as we have heard, the EU, the UK and Switzerland are not in that bracket. Its intention is to increase vaccine production in developing countries by sharing intellectual property for vaccines publicly for the period of that pandemic. It is needed because the data for November 2021, nearly a year from the first vaccine being delivered, showed that just 4.2% of people in low-income countries had received their first Covid vaccine. Across Africa, 6.3% are now fully vaccinated. COVAX has shipped just one-third of what it had expected would be available by the end of October—those expectations were based on promises from high-income countries. Export bans, manufacturing delays and bets on vaccines that have not received regulatory approval have also held up deliveries. Worse, we know that in this country we have thrown away vaccines rather than redirect them if we chose not to use them at a particular time It is time that the UK took a leading role in fulfilling the World Health Organization’s call. Now is the time to make all countries safe, not just for Covid but in preparation for whatever future pandemics may occur, and make sure every country is safe in the future.
My Lords, I want to speak narrowly to subsection (5) of Amendment 292, where it refers to the waiving of intellectual property rights and the protection of undisclosed information, and also where it refers to the waiving of agreements, all in an effort to assist global manufacturing. It provides a peg for me on which to hang the holy question of inadequate vaccine supply arrangements for third-world countries and, in particular, the need for greater manufacturing capacity, which would be assisted under a system of global waivers Two weeks ago, there was an interesting contribution from the noble Lord, Lord Grimstone of Boscobel, where, in reply to my noble friend Lady Chakrabarti, he said, “there is no evidence that waiving intellectual property protections would advance these objectives,” those objectives being “help with vaccine production and distribution.”—[Official Report, 24/1/22; col. 8.] I simply do not understand the Minister’s logic. As I see it, it is perfectly possible to manage such manufacturing requirements under directly monitored, subcontracted, licensee production arrangements In the same exchange, my noble friend and I went on to call for the 100 potential manufacturers in Africa—indeed, my noble friend has done it again today—identified by a number of charitable organisations to be encouraged to produce a Covid vaccine in approved plants under the subcontracting arrangements I have referred to. The Minister in reply, quite rightly, appeared preoccupied by ensuring companies were able to continue with “innovation.” I totally agree on that. That is a laudable objective that we all support. However, what evidence is there to suggest that in an entrepreneurial world, production under the carefully constructed management arrangements I have suggested deters innovation My suggestion in my original contribution was that it is perfectly possible to produce a vaccine and its subsequent product variants in dedicated production areas in approved plants and specialist facilities under the quality control of personnel seconded from advanced-nation producers. That is what I am asking for in the questions I have been asking repeatedly. What is the problem? How can that possibly destroy innovation as Ministers are suggesting? On the contrary, it raises greater challenges. It is a spur to increased innovation and, additionally, profit-taking, which I recognise is an important factor in funding research and development With less than 10% of the population in the world’s poorest countries being vaccinated under current vaccination production arrangements, we are prolonging the pandemic by leaving the door open to new variants. New variants will inevitably appear in under-vaccinated populations or, more specifically, in under-vaccinated ethnic groups which, often through a lack of available, detailed knowledge and under peer pressure, remain unconvinced of the need for vaccination I simply cannot understand the commercial, political or moral logic behind a failure to sponsor vaccination production under the arrangements I have outlined. We in the UK could be leading the world through this crisis if my suggestion was followed. We have spent billions on support schemes, much of it, sadly, wasted and lost in fraud. We could have spent much of that on vaccine initiatives. I think we are missing a trick, but it is not too late, as these pandemics are here to stay in one form or another. I appeal to the Minister to free up the market and pursue the strategy that I, and others far more significant than I, have been suggesting in this debate.
The noble Lord, Lord Howarth of Newport, is also taking part remotely. I invite the noble Lord to speak.
My Lords, this amendment raises major issues which warrant full debate outside the confines of the Health and Care Bill, but I am most grateful to my noble friend Lady Chakrabarti for providing us with this opportunity to consider them. I support the principle of the public health condition, as articulated in the amendment and as she described it The inflexible application of the intellectual property regime during the pandemic has been unconscionable. Huge numbers of people have died unnecessarily in low-income countries. Rich countries not only pre-empted and hoarded supplies beyond their reasonable needs but refused to relax the intellectual property regime to enable free manufacture of vaccines in low-income countries. South Africa and India led the appeal, on behalf of low-income countries, to the World Trade Organization to waive IP protections—patents, copyright, trade secrets. That appeal was rejected contemptuously and cruelly. The UK is among the culprits; the US and France support the waiver, but we do not The statement by the United Kingdom Government to the TRIPS council on 16 October 2020 is a piece of Mandarin cant: amoral, inhuman and disconnected from the realities of life and death for billions of people. Let me quote from it: “Beyond hypotheticals, we have not identified clear ways in which IP has acted as a barrier to accessing vaccines, treatments, or technologies in the global response to COVID-19.” The Covid crisis is not hypothetical. The refusal to support the free production of vaccines in low-income countries has had catastrophic consequences, yet still government Ministers repeat this theme The Government also said in their statement: “A waiver to the IP rights set out in the TRIPS Agreement is an extreme measure to address an unproven problem.” The pandemic is an extreme situation and the problem is staring at us—howling at us. At least 350 million cases of Covid have been confirmed globally, and estimates of the number of deaths from Covid range from 5.75 million to much higher figures The Government stated that: “Multiple factors need to be considered … These include increasing manufacturing and distribution capacity” Indeed. But the response to this challenge by our Government was to cut aid funding massively, from 0.7% of GDP to 0.5% of a declining GDP The Government then said: “The world urgently needs access for all to … vaccines … which is why a strong and robust … IP system … is vital.” That is a non sequitur to end all non sequiturs The last quote I will give from the Government’s statement to the TRIPS council is this: “The UK has played a leading role in … ensuring no-one is left behind” Do the Government really believe that? It seems to me to be beyond satire If we refer to Our World in Data, a website from the University of Oxford, for up-to-date figures, we find that in low-income countries 10% of people have had at least one dose of vaccine, while in high-income countries the figure is 78%. Africa has been most wretchedly left behind: on the continent of Africa 15.2% of people have had one dose and only 28% are fully vaccinated, whereas in the United Kingdom 78% of people have had one dose and 73% are fully vaccinated. It is not surprising that African leaders have complained bitterly of vaccine apartheid. How does the Minister refute that charge I feel profound shame at the behaviour of our Government; not only have they been morally purblind but they have been recklessly imprudent. Consider the economic consequences. The IMF has downgraded African economic prospects. Do we gain from the impoverishment of Africa? Think only of the implications for migration. Consider the diplomatic consequences. Africa has turned to China. How does our vaccine nationalism assist post-Brexit Britain to develop relationships around the world? Consider the health and economic consequences for ourselves. If we do not tackle Covid globally, we risk continuing damage to our economy, and our physical and mental health, as we reel in and out of lockdowns and restrictions. Consider the consequences for the world. Professor Sarah Gilbert has warned that the biggest threat is Covid spreading and mutating uninhibited in unvaccinated countries. No one is safe until we are all safe. Dr Hans Kluge, the World Health Organization regional director for Europe, last week demanded a drastic and uncompromising increase in vaccine sharing across borders. He stated: “We cannot accept vaccine inequity for one more day—vaccines must be for everyone” The United Kingdom has not paid its fair share of funding to the WHO accelerator programme. The UK committed to donating 100 million doses through COVAX, but what we have actually done falls far short of that; at the end of 2021, the figure was 30 million doses. Does the Minister accept that our Government have acted appallingly? Will he accept Amendment 292 and will the Government incorporate its principles, wherever relevant, in policy and legislation?
My Lords, I wish to speak to Amendment 292 and specifically proposed new subsection (5)(c) on the TRIPS waiver I was going to make a few points of context but the last two speeches—indeed all the speeches so far—have set the context extraordinarily well. As the noble Lord, Lord Howarth, has just said, Our World in Data tells us that, as of an hour ago, 66% of the world overall has had one dose but only 10% of those are in low-income countries When this discussion has been raised before—for example, during Questions on Monday in your Lordships’ House—the Government responded that there were practical problems with the proposal. Indeed, there are practical problems and it is not a magic bullet, but it is a first-class starting point. It is also a point that we then need to follow up with political will. I do not understand why the UK and Europe—with the exception of France, which has just said no to the proposal—have not put forward a counterproposal starting from this point. Why have they not done what some other noble Lords have talked about—something similar to what the noble Lord, Lord Campbell-Savours, has suggested? Why not use this proposal as a starting point to do something for three big reasons The first of those reasons is the end game here. The end game is not about intellectual property but about dealing with the next pandemic, and the one after that. It is about having the ability to manufacture and make vaccines available around the world, quickly and rapidly, whenever there is a need for that to happen. That is what we are looking at Secondly, the point has already been made that the UK could play a much bigger role here and in the direct interests of the UK population. We are a global power in biomedical science and technology. We have produced some help; I note, for example, during our G7 presidency, the ability to offer some scope to other countries for sequencing variants. However, much more that is being done in this country could be expanded on. I think, for example, of the global pathological analytical service being developed in Oxford, which is basically a database for the sequencing of variants around the world, and is making the data accessible to everyone, free of charge; anyone in the world can send their data to it for analysis to be provided. So there are many things that the UK could be doing and offering as part of the development of a sensible plan for the future that responds to what low and middle-income countries are asking us to do The other big point here is that if the UK does not respond, others will. We have already seen the process of vaccine diplomacy during the pandemic, and the positioning of China and Russia in how they have been seeking to make friends and influence people through the use of vaccines. We can also see that countries will start helping themselves, and they in turn will break away from the consensus I am reminded of the very different epidemic of HIV/AIDS, more than 20 years ago. It is a very different disease, and the circumstances were very different. However, some of the responses were the same. To quote Dr Peter Mugyenyi, who was head of the HIV/AIDS response in Uganda in 2000, “despite opposition by branded drugs manufacturers, and threats of punitive reaction, we took a decision to import and use low-cost generic ARVs from … India to save the lives of our patients” In a way, that says it all. Countries have that responsibility to their people, and they will go and do things Dr Mugyenyi goes on to say in the same article that at that point, the drugs were relatively expensive for Africa, but USAID, the US development agency, would not support their use in Africa because, it said, there was no ability to provide them to the population without the necessary supply chains. In an extraordinarily insulting and racist statement, the head of USAID said in 2001 that Africans could not use ARVs because they told the time by the sun. Two years later, President Bush moved that on, and President Clinton also intervened, with the result that antiretrovirals became cheaper. There is a process that will take place, whether we are a part of it or not. We do not know where this will end, but other countries will take their action The really important thing here is that the UK properly engages with this proposal, and puts in the counterproposal, whatever it is. It must be about working together, something along the lines of what the noble Lord, Lord Campbell-Savours, talked about: licensing it, working with people, learning from each other and building that infrastructure around the world, which, frankly, we need for the people of the UK as well as the people of the world I hope that in responding to this the Minister will talk about how he sees that development happening in the longer term and how the UK will have an impact on what we all see as a shameful position where we in our richer countries have been vaccinated if we have chosen to be, but in low-income countries people have not had that opportunity.
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Chakrabarti. It has been mentioned in your Lordships’ House numerous times that no one is safe until we all are safe. We have heard it many times in today’s debate I have voiced my concerns many times about the monopolies upheld by high-income countries that have chosen to retain scientific innovation and expansion by withholding the IP of the Covid vaccine. Low-income countries are in the position where they can manufacture their own vaccines, as there are more than 100 potential mRNA manufacturers across these countries ready to develop a vaccine, if they had access to the IP and the manufacturing know-how Too often the agendas of pharmaceutical companies are not aligned with positive public health outcomes. The public health condition aspect of Amendment 292 will help guide the Government to tighter stewardship around public funding to ensure that at the end of the development process, health treatments are both affordable and accessible to all concerned. I stand by the amendment in the name of the noble Baroness, Lady Chakrabarti, for this very reason, as its primary objective is to address the barriers that prevent poorer nations having adequate access to medicines at an affordable rate. We have heard many of your Lordships in the Committee today seeking to make the Government understand what is happening in lower-income countries and to support them and to ensure that action is taken when we say that no one is safe until all of us are safe.
My Lords, it is a pleasure to follow everyone who has spoken in this group. I thank the noble Baroness, Lady Chakrabarti, for so powerfully and clearly introducing this amendment, to which I was pleased to attach my name. The case has been overwhelmingly made, so I will not go over the same ground but will add a couple of points and draw some things together It is interesting that we started the day with the ARIA Bill. Concern was expressed from several quarters of your Lordships’ House about public money going into ARIA and whether we would see public returns from that money. As the noble Baroness, Lady Chakrabarti, said, what we have seen so often is the socialisation of costs and the privatisation of profits in so many areas of research and knowledge I draw to the attention of any noble Lord who has not seen it a very useful briefing on this amendment prepared jointly by Just Treatment, STOPAIDS, Global Justice Now and Universities Allied for Essential Medicines. That brings out two points, and it is worth looking at the national and the international. We have tended to focus on the international. Nationally there are some fascinating figures. The NHS pays more than £1 billion a year for medicines, but two-thirds of the upfront costs of producing those medicines come from public funding That is the national side. Looking at the international side, we have talked about and focused very much on Covid, but we really need to think about the fact that we are now in the age of shocks, in a world that is environmentally extremely disturbed. That is certainly a factor in the appearance of Covid; we have seen SARS and MERS, and there is Ebola out there. We need to build resilience into our world. We are talking about changing so many different things, and whether it is supply chains, medical supply chains specifically, or anything else, we really need to think about preparing for that different world, with the focus on resilience, rather than on private profits as it has been The noble Lord, Lord Crisp, asked an interesting question: why do we see the UK, the EU and Switzerland lining up against the rest of the world? The answer is there in profits, in an ideology that says, “We have to organise everything for private profits and somehow the benefits will trickle down.” It is interesting that today Michael Gove has gone on the record as saying that trickle-down has not worked; it is a failed ideology. Of course, there is also the impact of those profits being fed into our political system and the influence that that money and that lobbying have. I will finish with this final thought. The noble Baroness, Lady Chakrabarti, said—and I think this reflects what other noble Lords, particularly the noble Baroness, Lady Lawrence, and the noble Lord, Lord Crisp, said—that we have been utterly wicked in our behaviour towards the global south in the Covid pandemic in failing to ensure that it has crucial vaccines. We have also, as has become obvious with omicron, spectacularly shot ourselves in the foot. I say to those who will not accept moral arguments for this amendment: please look at the practical self-interest. No one is safe until everyone is safe.
My Lords, I thank my noble friend Lady Chakrabarti for raising the crucial matter of countries and peoples left behind in terms of the opportunity to have a necessary vaccination programme available to them. My noble friend Lord Campbell-Savours spoke of the importance of supporting innovation, which is one of the ways in which we can ensure that, while my noble friend Lord Howarth rightly said that the subject requires exploration outside of the Health and Care Bill—something also commented on by the noble Lord, Lord Crisp, who emphasised, as do I, the need for the political will to make progress There is no doubt, as we have heard today, about the gravity of the issues at stake and the need to resolve them. It is the case that where public funding is provided there must be conditionality, although of course that may be complex to refine into legislation. There are of course additional issues when funding is also coming from the private sector along with a need to ensure a balance of interests. It would certainly be helpful to have a stipulation that avoided placing undue bureaucracy and restraint on smaller developments and small-scale research. We do not want to see the pace of research slowed down with researchers tied up in lengthy proposal writing, contract negotiations and legal agreements As my noble friend Lady Lawrence has said, we know that the pandemic is not over until it is over everywhere, so the amendment raises the opportunity to explore whether the immediate waiver of intellectual property rights would mean an end to the pandemic everywhere. It is relevant to assess what contribution or otherwise intellectual property rights make to the promotion of technological innovation and the transfer and dissemination of technology. There is an advantage for producers and users of technological knowledge and the consideration of rights and obligations, and that needs to be considered in the round In respect of the response and actions to a pandemic declared by the World Health Organization, while I understand the intention behind the amendment, in order to be consistent I would comment with some caution about the Secretary of State being compelled to immediately take actions, particularly without any form of oversight—something that we will return to later in Committee However, I hope that today we can obtain some reassurances from the Minister about the Government’s intentions and plans in order that we can find a way forward so that low-income countries and their peoples have access to vaccines both now and in future.
I thank the noble Baroness, Lady Chakrabarti, for bringing this debate before the Committee today and for the heartfelt speech that she gave. The noble Baroness will be aware of the view of this Government following her recent Question in the House on the subject of patient waivers. As my noble friend Lord Grimstone set out, the Government remain open to all initiatives that would have a demonstrably positive impact on vaccine production and distribution. However, we believe that waiving intellectual property rights would have the opposite effect. Doing so would dismantle the very framework that helped to develop and produce Covid-19 vaccines at the pace and scale now seen. It would risk undermining the continued innovation in vaccines and technological health products that is required to tackle a virus, especially as it mutates and evolves, so we believe that doing so would be a mistake Instead, the success of the Covid-19 vaccine rollout vindicates the value of public and private co-operation. While university research departments are great at research, large-scale manufacturing and global distribution are not their function, so we recognise the importance of their working with partners with expertise in this area The intellectual property framework is key to those efforts. It has incentivised the research and development that has led to the development of Covid-19 vaccines. It has given innovators the confidence to form more than 300 partnerships, an unprecedented number, and has contributed to the production and dissemination of vaccines and other health products and technologies across the world, with global Covid vaccine production now at nearly 1.5 billion doses per month I share the noble Baroness’s intention that research funded through taxpayer finances should benefit the taxpayer, but we do not consider that that is best achieved through particular constraints in primary legislation. Research contracts afford greater flexibility and more powerful levers than the amendment, through provisions such as those requiring the dissemination of intellectual property for patient benefit, revenue sharing with the Government of commercialised intellectual property, and requirements around access to medicines in the developing world. Contractual protection mechanisms in funding arrangements can also ensure that intellectual property funded by taxpayers results in the creation of taxpayer benefit We recognise the importance of ensuring that developing countries have access to vaccines, not least for global health security, for many of the reasons that noble Lords have outlined today. The UK is developing common principles to standardise the approach in research funding to encourage equitable access for less developed countries—for example, the National Institute for Health Research clauses are considered a global exemplar in this space. In addition, the UK is already supportive of the right to use flexibilities within the TRIPS intellectual property framework by other countries where necessary in order to achieve their public health and public policy objectives The UK has taken a wide range of issues to improve access. We are wholeheartedly committed to addressing vaccine equity on every front, including through our trade policy. We have demonstrated this through our sponsorship and promotion of the trade and health initiative as well as the unilateral measures that we have taken, including tariff suspensions. In line with our G7 commitments, we have donated over 30 million vaccine doses and will have donated 100 million vaccine doses by June 2022, 80% of which will go to COVAX, where doses will be distributed in line with COVAX’s fair allocation model In addition, the Government have provided technical support to aid the development of regional manufacturing capabilities. One of the issues that often comes up in my conversations with G7 and G20 Ministers is how to ensure that while we have access to vaccines, and we are talking about the third and possibly fourth doses, some countries have not had the first dose yet. We feel that it is important to find how we can work together, particularly on some of the barriers in countries, such as distribution networks. You may get the vaccines into a country, but how do you get the jabs into the arms? How do you make sure that they are stored at the appropriate temperatures, for example We have also been discussing health partnerships. In one of my early meetings as a Minister with my counterparts in Kenya, the issue came up of how to help Kenya and other countries to improve their manufacturing capacity locally. A lot of this, in trade and aid speak, is capacity building—that is, making sure that they have the expertise but also the distribution networks. There is good technology in this area. Drone technology promises great advances where you can leapfrog over existing poor distribution networks. So we will continue to focus on improving health readiness, ensuring the distribution of manufactured doses and building vaccine confidence in order to get these jabs into arms so that we are all safe I give a personal example. When I was in the European Parliament, I often went on delegations. I was particularly interested in how you help the very poorest countries through trade. Quite often when I spoke to entrepreneurs in these countries I would say, “What more can we do to help you? What barriers do we need to remove?” They would say, “There is so much that you can do, but sometimes half the problem is with our own Government and our own poor governance. It is these issues and poor distribution networks that inhibit our development.” We have to be aware of country-by-country differences, but we also have to make sure that we build capability so that we are no longer talking about aid but instead are helping countries to help themselves in this area We believe that our approach is the right one: building capacity in other countries, health partnerships and working multilaterally across the world to ensure equitable access to vaccines. It is for these reasons that I ask the noble Baroness to withdraw the amendment.
I am grateful to all noble Lords, particularly to the Minister for his characteristic courtesy. I think that this conversation will need to continue, as there is room for greater common ground. We will be back. I beg leave to withdraw the amendment.
My Lords, with the leave of the House, I shall now repeat in the form of a Statement an Answer given to an Urgent Question in another place. The Statement is as follows: “The humanitarian situation in Afghanistan remains deeply concerning. In January, the UN requested nearly $4.5 billion for 2022—the largest humanitarian appeal on record. The UN has announced that it will be holding an international pledging conference on 31 March, and the UK is strongly supportive of that conference. On 28 January 2022, the Foreign Secretary announced £97 million of humanitarian assistance to Afghanistan from the UK. This latest allocation of vital support delivers the Prime Minister’s promise to double the aid to Afghanistan to £286 million. By the end of January 2022, we had disbursed over £176 million in aid and will disburse the remainder by the end of this financial year—that is, the end of March UK aid allocated since October is supporting over 60 hospitals, providing health services for more than 300,000 people, ensuring that 4.47 million people get emergency food assistance through the World Food Programme, and will provide 6.1 million people with emergency health, water, protection, shelter and food, through the UN Afghanistan humanitarian fund In addition to providing immediate assistance, we are playing a leading role in international efforts to address multiple causes of the crisis. The provision of basic services such as health and education remains critical. We continue to explore solutions for service delivery such as payment of front-line delivery workers. We are working closely and monitoring Afghanistan’s economy, specifically its lack of liquidity, and we are working with partners to seek solutions. The UK also played a key role pressing for a resolution establishing a humanitarian exemption under the UN Afghanistan sanctions regime. On 27 January, the UK Government laid legislation to implement UN Security Council Resolution 2615. That will save lives and reduce the impediments faced by humanitarian agencies.”
My Lords, I thank the Minister for repeating the Statement. Anyone who watched “Panorama” on Monday will have been truly shocked by the conditions that were highlighted. I hear what the Minister said about financial support from the UK, but it is at the same level as it was in 2019 when there was no crisis. At Oral Questions on 13 January and in the debate that we had on 24 January, I stressed to the noble Lord, Lord Ahmad, the urgent need for the UN pledging conference to take place. Vicky Ford said this afternoon that we are co-ordinating support for that conference, which will now not be held until 31 March. The best way to encourage other nations to step up to meet the additional $4.4 billion asked for by the UN would be to take the lead. Can the Minister confirm today how much the UK will contribute to the UN fund? If he cannot do that today, when will we make the announcement?
I thank the noble Lord for his important question. As I said, we are strongly supportive of the announcement of the international pledging conference that is being organised by the UN. It is worth repeating that the $4.4 billion represents the largest humanitarian appeal on record. We have already announced a substantial donation and the noble Lord is quite right that showing a strong lead is important. More details will be announced soon It might also be helpful if I explain some of the other areas where the UK has taken a strong lead. We have played a lead role on releasing funds held with the World Bank’s Afghanistan Reconstruction Trust Fund and in December £280 million was transferred out to support food security and healthcare. We continue to work with partners and the World Bank to release the remaining $1.2 billion as quickly as possible The UK supported the Asian Development Bank’s $405 million package of support and that money will be used for public health services, primary and secondary education and the provision of emergency food services. As I mentioned, the UK aid allocated since October is supporting over 60 hospitals, providing health services for 300,000 people and ensuring that 4.47 million people will get emergency food assistance through the World Food Programme.
My Lords, while the Taliban are overseeing a humanitarian catastrophe, the UK and others have a moral obligation to the people of Afghanistan. While I welcome the Government’s actions, it is a fact that they are too slow and too little. The UN is currently forecasting that there will be a significant shortfall in its appeal, so I would be grateful to know if that is also the Government’s assessment The International Rescue Committee has estimated that 90% of all health clinics in Afghanistan are in the process of shutting down and that outbreaks of preventable disease will completely overwhelm the country’s entire health service. What makes up the remainder of the £100 million that we are yet to disburse The noble Lord, Lord Collins, is absolutely right: statements from the Government that they are doubling our support, when actually they are simply restoring cuts, mean nothing. The question is what the additional amount will be for 2022-23. My understanding is that some of the commitments in the £286 million are anticipated to be spread over a number of years Finally, the Taliban are in Geneva today, talking to Swiss authorities concerning the distribution of humanitarian funds. The statutory instrument that the Minister referred to was welcome—that we are making exemptions in certain circumstances to ensure that humanitarian support goes to the people. We debated this in Committee and discussed it with the noble Lord, Lord Ahmad, previously. But what is our approach to dealing with the Taliban now?
I thank the noble Lord for his question—actually, it was more than one. I think I said at the start that the £286 million will be disbursed by the end of the financial year. It might help if I outlined some of the partners and aid programmes that we have donated to, and the amounts. We have donated to various partners in Afghanistan £172 million—or, I should say, it has been allocated. The Afghanistan Humanitarian Fund has received £61 million; the World Food Programme £54 million; the International Organisation for Migration £17 million; and UNICEF £50 million. I am afraid I do not know the answer to the question about future funding Discussions and engagement with the Taliban are ongoing but, of course, difficult. Most recently, we have engaged with them in Oslo. Ongoing efforts are being made through the chargé d’affaires in Doha. I cannot comment beyond that at this point.
My Lords, it can take many months for food to be gathered, shipped and distributed within the country, and it can also be very expensive. Will the Minister say what efforts have been made to locate food resources that already exist in Afghanistan and perhaps neighbouring countries and to ensure that that food actually reaches the market so that people can buy it at affordable prices, because market hoarding is a very common factor in any food shortage, particularly in famine? What is the UK’s attitude towards sending money rather than material aid?
I thank the noble Baroness for her question. I cannot answer the question about how food is sourced; that is well beyond my remit. But I can say that we are supporting life-saving humanitarian assistance through the UN and other trusted organisations. They continue to ensure that vital aid reaches those who need it most. All UK aid is subject to strict monitoring and verification to ensure that it is used to help only the vulnerable people it is intended for I spoke to my noble friend Lord Ahmad this morning and I am sure that Members of this House will pay tribute to what we all know are his tireless efforts on this subject. He has reassured me today that key partners report that aid is getting through, but we have to remain vigilant I have mentioned the economy already. The FCDO is closely monitoring the lack of liquidity in the country. The UK is playing a leading role in the international efforts to address that lack of liquidity and the multiple causes of the crisis, including working with the World Bank and UN to find solutions that will allow NGOs to access the country.
My Lords, it is very good how much is being given. Operation Herrick cost us at least £22 billion and we managed to find that, so I hope we can release more generous aid rapidly. There is also a humanitarian issue for Afghans who have been freed and are now here but whose families are still in hiding for fear in Afghanistan. Can the Minister update us on how those people are going to be got out of Afghanistan?
I can certainly try, and I am sure many noble Lords, like me, received a rather harrowing email on the subject of a particular individual who is currently stuck in Pakistan. In case anybody is interested, that email has gone into the Foreign Office and the case is being looked at now by the task force We have engaged with Governments in the region, notably Pakistan and central Asia, to allow Afghan nationals to cross their borders from Afghanistan on humanitarian grounds. More than 3,400 people have left in order to move to third countries and then to the UK since the end of Operation Pitting. To date, the UK Government have been allocating money to those regions, so £17 million has gone to support countries and £10 million has gone to support preparedness in the region and to help mitigate widespread humanitarian disaster. That includes £3 million to Iran, £4 million to Pakistan and £2 to Tajikistan.
My Lords, we are partly responsible for this, with the scuttle in August. Can something not be done to bring forward the date of 31 March? Can we not summon colleagues, allies and friends to do something much more quickly? In six weeks, thousands of people will be dead and the devastation will be worse.
I think my noble friend is following on from the question from the noble Lord, Lord Collins. Of course, I agree. In a perfect world it would be nice to do that—but I cannot account for UN’s timetable, I am sorry.
My Lords, one of the detrimental effects of the crisis, both internally in Afghanistan and in its direct impact on the UK, is the Afghan economy running on zero. One of the banes of the lack of markets for farmers is the necessity to turn to the growing of poppies and therefore the production of opium. While I accept that commanders coerce farmers, what is being done to curb possibly the only potential for the generation of cash internally in Afghanistan and what was achieved by the allies when they were in Afghanistan in curbing this ghastly trade?
I am afraid I do not have the answers to those questions. I will have to write to the noble Lord to give him an update.
My Lords, I am a bit reluctant to get up again and say something, because when I did this yesterday, we sat until 3.25 am. The Opposition Chief Whip has asked me to point out that we still have 10 groups to go. Unfortunately, I am speaking mainly to the Front Benches, which have been very co-operative, but we still have 10 groups to go, and the usual channels have agreed between us that this Bill must complete this evening. So I implore noble Lords not only to be brief, as I have said many times before, but to limit their points to those that are relevant to the amendments before the Committee. I know the Front Benches will seek to do the same, so I hope all noble Lords will try to be very brief and to the point. Then we can get through this in a reasonable time.
My Lords, I hope the Government Chief Whip will send the memo round. Last Tuesday, my noble friend Lady Barker introduced a Question for Short Debate about ambulance response times. In introducing the debate, she looked behind the distressing headlines about people with life-threatening illnesses waiting too long, sometimes fatally, for an ambulance. She outlined the underlying factors important in identifying the problems and solutions for our ambulance services The NHS has set out national targets for a seven-minute average response time for life-threatening incidents. However, the average has been rising and was over nine minutes in December 2021. Targets for less serious incidents have also been rising. This amendment would put in place just one of the potential solutions to the ambulance crisis, which my noble friends Lady Barker, Lady Brinton and Lord Scriven referred to in that debate. It would set up a system for ambulance trusts to collect data about ambulance response times by integrated care system and by postcode. They would also have to publish information about where response targets were missed. In any situation that requires corrective action, it is vital that we know where we are starting from, and transparent and detailed data collection and publication does exactly that During the debate, my noble friend Lord Scriven suggested that in order to understand why ambulance services are so hard-pressed, we need to look up the line to primary care services. He was, of course, correct: many urgent cases occur because patients have been unable to get a GP appointment, despite the fact that GPs tell us they are now carrying out more consultations than ever through triage telephone consultations The problem is caused by the shortage of GPs, particularly in some areas. We have been promised 5,000 more GPs but that has not been achieved. My noble friend also mentioned the lack of community mental health services, and in some cases the almost complete absence of child and adolescent mental health services that often lead to a mental health crisis resulting in the patient calling an ambulance Another major issue is caused by problems downstream. Paramedics have to wait outside hospitals to hand over their patients to A&E staff, meaning that they cannot go out to another case. It is incredibly frustrating and demoralising for them. Sometimes paramedics have to leave a serious case in the hands of a family member in order to go to an even more serious case elsewhere. It is well known why ambulances are piling up outside A&E: there are no free beds because the patients already inside cannot be transferred to a bed in the main hospital or discharged. The main hospital cannot discharge patients because of the lack of social care elsewhere, and so it rolls on. These delayed transfers of care are the result of serial underfunding of social care and poor workforce planning. The problems are both upstream and downstream, but we cannot solve all those with one amendment. However, I hope the Minister will accept that collecting and publishing data on a very detailed basis will at least help The detail is important. During the debate my noble friends referred to the fact that there is enormous regional variation in ambulance response times. My honourable friend Helen Morgan, MP for Shropshire North, collected a worrying set of data in her very rural area, where four ambulance hubs have recently been closed. Her constituents are rightly horrified about this. Ambulance services in Cornwall have also recently shown unacceptably long waiting times, even for category 1 cases where lives are at stake Collecting the data referred to in this amendment would certainly help to identify the specific issues in areas such as these so that action can be taken. It may be harder to serve very rural areas, but residents in those areas deserve as good a service as anyone else. Better data plus better workforce planning, which we are dealing with under another amendment, would ensure that the resources available are adequate to take account of geography and other factors. I beg to move.
My Lords, I thank the noble Baroness, Lady Walmsley, for presenting this amendment. I too take the view that ambulance services play a significant role in our National Health Service, particularly in the redesign of care pathways to reduce pressure on hospitals and provide better care to patients. If that can be at the right time, in the right place, that produces the greatest benefits The amendment in the name of the noble Baroness, Lady Walmsley, sets out the case for a more rigorous and accessible reporting system for ambulance services on response times. As your Lordships’ House debated just last week, and as the Minister acknowledged, at present performance is below what is acceptable. I am pleased that under the amendment, the method for introducing regulations would be subject to proper review by Parliament. On the specifics, it is welcome that there is a requirement of the use of data already captured by ambulance control and dispatch systems, specifically requiring analysis by integrated care system area and by postcode. This would provide a valuable source of further evidence about inequalities in care provisions which would mean that it was possible to identify and address them On the proposed requirement for the recording of explanations for all incidents where the relevant response time target was missed, it would of course be important to ensure that any extra recording of data in an emergency care environment did not add to existing pressures. I look forward to the Minister’s response.
I thank the noble Baroness, Lady Walmsley, for bringing this short but important debate before the Committee The Government fully recognise the importance of ambulance response times and of patients receiving the help they need when they need it. Like other emergency care services in the NHS during the pandemic, ambulance trusts have come under significant pressure, answering almost a million 999 calls in December alone —an increase of 22% on the year before. That is why we have put significant support in place to help ambulance trusts at this time. I will not go into the detail, which we covered in the debate last week. Instead, I will respond to the specifics of the amendment It is the Government’s view that it is right that reporting happens at the level of ambulance trust region. Trusts are commissioned to meet response time targets at a regional level, not at a more granular part of their operating area such as postcode or integrated care board area. It is inevitable that there will be variations in response times within regional footprints from month to month. However, the existing ambulance response time standards already include a mechanism to performance-manage significant variation or long waits for ambulances. All ambulance response time categories include a 90th centile response time standard to measure the “tail” of ambulance response times. This means that trusts are measured on the response to every call they receive and cannot favour some parts of their region over others to game response time targets. Reporting response times down to a postcode level would require a massive expansion to existing reporting that would not be reasonably deliverable I also reassure noble Lords that the service transparently provides clinical outcomes data. These indicators were introduced in 2011 and provide detailed information on clinical outcomes for cardiac arrest, heart attack, sepsis and stroke patients. While the Government acknowledge the challenges to ambulance response times and are working hard to address them, for the reasons I set out, I hope the noble Baroness feels able to withdraw her amendment.
I thank the noble Baroness, Lady Merron, and the Minister for their responses to this proposition. I still think that somewhat more granular collection of data would be really helpful, because a region is a very big area and there are all kinds of factors that affect how quickly ambulances get to people who need them. It is particularly important in the case of category 1 incidents, where life is at stake and interventions can have the most amazing results, if only they get to the patient within 40 minutes, say, in the case of stroke So, it is vital that we get that granular information. I accept what the Minister said about the additional money that has been provided, but as I and my noble friends have said, the problems are both sides of the ambulance: downstream and upstream. It is a systemic problem, and it needs to be looked at as a whole. Having said all that, I beg leave to withdraw the amendment.
My Lords, in the next group of amendments, the noble Baroness, Lady Brinton, will be participating remotely Amendment 297F
My Lords, the noble Lord, Lord Blencathra, and I have grave concerns about the present single-sex ward provision which our two amendments seek to obviate. I have had the opportunity already to discuss this with the Minister himself—the noble Lord, Lord Kamall—and I am grateful for the opportunity he gave me also to meet with his officials. None the less, these two amendments address the very sensitive issue of hospital bed space allocation and hospital service provision for women Traditionally, female patients in the NHS and in private hospitals have been allocated beds in single-sex wards accommodating only women patients. Transgenderism —I speak as a woman—has undermined that provision, with the 2019 NHS guidance authorising self-selection of patient gender on arrival in hospitals, something neither enshrined in law nor backed by public demand, and overriding the exemption for hospital services in the Equality Act 2010. Yet Parliament and our Ministers have consistently declared that women both need and should have privacy, dignity and safety in their most vulnerable of situations, such as when sick or pregnant. As consistently, Ministers on all sides of both Houses have declared that this will be or already is the case.
My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.
My Lords, I will speak against Amendments 297F and 297G, spoken to just now by the noble Baroness, Lady Nicholson. One incident last week explains why they are dangerous and unnecessary. A woman, whom I will not name, was in hospital said the following on Twitter: “This is incredibly hard to say, and I couldn’t feel more foolish, embarrassed, awkward and dumbfounded as I do now, but it’s been confirmed that the person I believed to be male on the hospital all female bay I was on, was … in fact, a female. This has been 100% verified … I have no words other than how on earth did I mistake a woman for a man? Delicately and with respect I say she was a very emasculated woman and I’m just totally stunned right now at the mistake, my mistake… and am … mortified that I took to Twitter utterly convinced that the woman who looked and sounded like a male, turns out to be quite genuinely a female. I apologise for causing a storm and will take some time off here while I let it sink in. I cannot understand how I got it so wrong … I feel a complete idiot.” The problem is that these two amendments feed into the conspiracy movement against trans people and prey on vulnerable women such as this who believe that there is a problem. The fear inculcated by the gender-critical movement means that she felt entitled to aggressively call out a complete stranger minding her own business in her own hospital bed, in case she was a trans woman. Yet the reality is that there is absolutely no evidence whatever of trans people causing problems on single-sex wards. All the examples of assault given by the noble Baroness, Lady Nicholson, were by men, not trans women What is more, trans people, just like people who are not trans, have a right to privacy and dignity in hospital, just like everyone. Imagine if the patient who had been aggressively called out by this woman had been a trans woman. Is that sort of behaviour towards someone ill in hospital in any way appropriate? Of course not Amendment 297F, also in the name of the noble Lord, Lord Blencathra, sets out how to record instances where people complain about trans people simply on the basis that they are trans. Such behaviour may be part of a pattern of behaviour that may result in risks to any patient who is trans, visibly gender non-conforming or, as in this case, a woman. Not allowing the recording of such incidents may then place the NHS trust at risk of failure in its duty of care if something subsequently happens between the two parties The noble Baroness, Lady Nicholson, started to outline the definition of “harassment” under the Equality Act: “violating” a person’s “dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment” The amendment would only restrict recording of incidents involving trans people—not other gender non-conforming people. As such, it would be discrimination because trans people would be prevented from having discriminatory actions against them recorded, while everyone else would not be so prevented Amendment 297G flies in the face of current hospital practice. The NHS already has policies relating to where trans people should be housed, which reference the types of treatment required and the requirement for respecting the privacy and dignity of the trans person, alongside the privacy and dignity of all other patients too. This amendment would overrule those policies and therefore override the privacy and dignity of trans patients. It would clearly breach basic human rights legislation. And, by the way, trans people may require medical treatment for conditions relating to their lived-in sex: trans women may get breast cancer, for example. Requiring them to be housed in different accommodation could mean that the specialist nursing care required for their recovery may not be available But there might also be an unintended consequence of this amendment. If trans people know that they will be housed with people of their birth sex, rather than of their lived and legal sex, many will avoid going to hospital altogether, leading to many having increased and dangerous health complications. This could be potentially life-threatening, which is implicit discrimination under the Equality Act As the recent incident highlighted on Twitter shows, there actually is no real problem to be solved, and all that these amendments do is seek to demean and ostracise trans women in our society. I hope that the Minister will not support them.
My Lords, I speak in support of Amendment 297G. This will give much-needed statutory force to what has been long-stated NHS policy, but which has not always been properly implemented. This is why we will demonstrate why current guidance is equivocal upon it. I hasten to add that I am not a conspirator against trans people—I make that absolutely plain. I resent the suggestion that those speaking in support of this amendment might be thought to be The current NHS guidance, which goes a long way back historically, as we have heard, is in these terms: “All providers of NHS-funded care are expected to prioritise the safety, privacy and dignity of all patients”— we all agree with that. It continues: “Adherence to this guidance is an essential part of this.” It then goes on to talk about mixed accommodation: “What is a mixed-sex accommodation breach? … Patients should not normally have to share sleeping accommodation with members of the opposite sex. Patients should not have to share toilet or bathroom facilities with members of the opposite sex. Patients should not have to walk through an area occupied by patients of the opposite sex to reach toilets or bathrooms; this excludes corridors.” This is what hospitals should be doing. In particular, I ask your Lordships to note the terminology and the use of the terms “mixed-sex” and “opposite sex”. Sex, we all know, is physiological; it dates from conception and is not assigned at birth or at some later date. The definitions of man and woman in Sections 11 and 212 of the Equality Act refer to sex, not gender. Further, Part 7 of Schedule 3 of the Equality Act provides at paragraph 27: “A person does not contravene section 29 … by providing a service only to persons of one sex if … the service is provided at a place which is, or is part of … a hospital, or … the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.” Hospitals are free to do what they wish and to prioritise single-sex wards. However, in contradiction to the law, physiology and the primary guidance to which I have referred, annexe B of the guidance provides: “Transgender … is a broad, inclusive term referring to anyone whose personal experience of gender extends beyond the typical experiences of their assigned sex at birth.” We are moving from sex to gender, and it is premised on a scientific flaw. Building on that error, it continues: “If patients are transferred to a ward, this should also be in accordance with their continuous gender presentation (unless the patient requests otherwise).” The guidance is not saying that they should be put somewhere safe or separate but that they should go to the ward that they wish. If they say a women’s ward, they go to a women’s ward. That is not what Secretaries of State have said and not what has been policy for 20 years, and it departs from the primary guidance. I submit that it is wrong—and I am sure noble Lords will all agree. It discriminates against women who do not wish to be in the presence of someone who is an intact male, as some trans people will be Amendment 297G is perfectly reasonable and absolutely right, and I urge noble Lords to adopt it.
My Lords, I support the amendments in the names of my noble friend Lady Nicholson of Winterbourne and myself. I pay tribute to her for raising this issue of vital importance to women, and for being their champion over many years in the face of some bitter attacks from a minority of trans zealots I must say to the noble Baroness, Lady Brinton, that I resent the implication that somehow we are attacking trans people in these amendments. There is no conspiracy against them; we want equal treatment for everyone in the NHS. If there is any conspiracy it seems to be to demean the status of women. I also say to her that, yes, if these amendments were accepted, NHS policy would have to change to comply with the law of the land—the Equality Act 2010—because it is in breach of the exemptions in that Act at the moment As we all know, there is no real privacy in hospitals, however hard they may try. If one ties that funny gown the wrong way, like a dressing gown, one’s front is exposed; if one ties it properly, the rear is exposed. Even when one is recovered and wearing pyjamas or female bed attire, it is impossible in a hospital to carry out the routine of getting into and out of bed, and using the washing and other facilities, without some part of one’s anatomy being exposed. Many patients neglect to close or lock washroom doors. Some with mental health problems may express sexual disinhibition. When doctors come round and pull the screens around the bed, of course, there is still the discussion of one’s condition and the medical profession’s obsession with bowel movements, as we all know about I am old enough and ugly enough not to care what parts of my body medical professionals see. They have all poked, prodded and cut out various bits of it over the years so I am reasonably immune to embarrassment with them. However, I would find it highly embarrassing if I found a woman, or a man declaring as a woman, in the next bed and encountered her in the ablutions. Of course, it is highly unlikely that I would meet a woman since an infinitesimally small number of women identify as men, but many more men identify as women All my life, there has been an NHS policy of single-sex wards and Governments of all colours have been slammed on those occasions when men and women were sharing hospital accommodation. The policy is that patients should not have to share sleeping accommodation, nor toilet or bathroom facilities, with members of the opposite sex. The operative word is “sex”—biological sex, not gender Since we are speaking about women, sex and hospitals, I will put some astonishing medical information on the public record which has resulted in some women being sacked or abused for saying it. I stand to be corrected by medical experts present. I believe that only women can give birth to children, since only women have wombs. No matter what one declares one’s gender to be, only men get prostate and testicular cancer. Only women can breastfeed their children and men who have chests cannot. The sex of babies is not assigned at birth. Babies are born as boys or girls, and that includes those born with those rare congenital disorders of sexual development. No one decides to assign male or female to a baby; they are born that way, so that is why the term “sex assigned at birth” is so offensive In the course of daily life, working in most jobs or going to the pub et cetera, sex and gender do not matter and one can call oneself what one likes. But when it comes to medical treatment, two vital factors can determine the diagnosis and that treatment. These factors are age and sex. Sex is the only thing which matters medically, not gender, and that was always the case until the mistaken guidance issued in September 2019. The NHS always recognised that single-sex accommodation was essential not only for a patient’s privacy and dignity but for their treatment and recovery. Doctors recognised that patients in distress for whatever reason cannot recover as easily as those who are comfortable in their surroundings, and who are not fearful of people of the opposite sex seeing their body at a time when they are at their most vulnerable. That is why the NHS guidance stated in absolutely unambiguous terms: “There are no exemptions from the need to provide high standards of privacy and dignity at all times” As my noble friends have pointed out, it all went haywire in annexe B of the guidance, which failed to implement the Equality Act 2010 and said that trans people should be accommodated according to their self-identification, which the guidance says “may not always accord with the physical sex appearance of the chest or genitalia” It goes on to say that “pre-operative transgender people should not share open shower facilities.” I am sure that Jewish or Muslim women find it immensely reassuring that they can be in a shower with a man, so long as he has had some operation on his genitalia. This is the advice I received from a Jewish expert in medical ethics. The religious requirements of Orthodox Judaism mandate single-sex facilities for both men and women where people are likely to be in a state of even partial undress. This includes the requirement for single-sex hospital wards, bathrooms and changing rooms. The distress, both psychological and spiritual, that is likely to be caused to Orthodox Jews if they are forced to share facilities with members of the opposite sex is considerable, as is the impact on the patient’s family. Orthodox Jews are protected under the Equality Act on the basis of their religious belief. It would be wholly unacceptable if an Orthodox Jewish woman were to be counselled by NHS staff into accepting the presence in the bed next to hers of a male patient who identifies as transgender. That is the advice I have received on Orthodox Judaism. I do not know, but I assume that the requirements of Islam are similar The needs of these women should apply to all women, whether religious, atheist or pagan, and not just those with particular religious beliefs. What is wrong with NHS guidance Annex B is that the Equality Act 2010 specifically exempts hospitals and the provision of joint services where a joint service for persons of both sexes would be less effective and in circumstances where a person of one sex might reasonably object to a person of the opposite sex I say to the Minister that the law is clear: women have the right to be kept in hospital accommodation with only other women. One of course exempts intensive care units, where patients are unconscious or nearly unconscious; their medical treatment is best served by all being in the same specialist unit together. I call on my noble friend the Minister to withdraw this flawed guidance on transgender patients and instruct the NHS to comply with the law of the land I will say a brief word on Amendment 297F. I have read the reports that some NHS trusts have logged women as transphobic, when all they have done is request single-sex accommodation and not to be in a bed next to a man who identifies as a woman. There are a few reports of this. It is nothing to do with anyone on Twitter posting a rant about some hateful person next to them; it is ordinary women saying, “Please can I be in a room where I do not have a man next to me?” It is as simple as that. I am told they are recorded as being transphobic, merely for making that request I asked my noble friend, in a Written Question, what evidence he has of this. He said that unfortunately —or fortunately—the NHS does not collect this information centrally; it is left to the trusts. I accept that, but I would like my noble friend to issue an instruction to all NHS trusts that it is perfectly legal for a woman to make this simple request and that she must not be stigmatised as transphobic for asking. That is completely separate and quite different from anyone who makes racist, offensive, threatening or genuinely hateful transphobic remarks There must be no discrimination against trans people in hospital or discrimination against anybody. Our amendment makes it clear that trans people must receive equal medical treatment, but that does not mean that their gender identity wish must be accommodated over and above the wishes of people of the opposite sex. If there were a finely balanced conflict of rights here, I would take the view that those demanding it is their right that their gender identify should take precedence over women’s sex are wrong and the rights of women should prevail. But there is no fine balance here. In my opinion, the NHS is breaking the Equality Act 2010, and I request that it obeys it as soon as possible.
My Lords, I want to ask the Minister a brief question. The contention is that there is a tension between the NHS England guidance on single-sex wards, which is eminently sensible, and Annex B. I would be grateful if the Minister could respond on that specifically. In particular, he knows that under Schedule 3 to the Equality Act, on single-sex services, to which the noble Lord referred, it is permissible for the NHS to provide separate accommodation for women who are biological females. But my reading of Annex B is that it excludes that option. Again, I ask the Minister for the Government’s view on this My main reason for intervening is to say this. Surely there is a case now for a government review of the guidance. The Minister will know that the Equality and Human Rights Commission will shortly be updating its guidance on single-sex services. Clearly, it would be very sensible to review the NHS guidance in the light of that. An assurance that this will happen would be very appropriate.
My Lords, I support the noble Lord, Lord Hunt, in his very reasonable request for the Minister to confirm that a review will take place I remember that some 20 years ago I was challenging the noble Lord, Lord Hunt, when he was Health Minister. The pledge for single-sex wards had been made by his predecessor, the noble Baroness, Lady Jay. It was a very slow road towards single-sex wards. Reading Annex B, it seems that, suddenly, we are in a completely different place—the goalposts have been moved. I do not quite understand who was consulted about Annex B and where we go from here, in the face of completely different wording in the main guidance from the annex itself. How can one reconcile the gender-friendly Annex B with a single-sex broad pledge in the main guidance? At the very least, there needs to be a review of what exactly the regime is that we want to support? I entirely agree with noble Lords who believe that anyone who raises this issue should not be labelled in one way or another I was particularly concerned to see that, effectively, if you classify yourself as non-binary you can choose to go into a ward of any sex. I do not know that I see that in any equalities legislation or human rights legislation. That seems to me to be the hardest point. I cannot understand quite why that has appeared No purpose is served by lurid examples of this, that and the other. As a lawyer, I know that hard cases make bad law but, at the very least, the conflict between the main guidance and Annex B must be resolved in one way or another, clearly, and probably with parliamentary approval. It must conform with equalities legislation, and I hope that the Minister pledges to take that forward.
My Lords, I always enjoy listening to the noble Lord, Lord Blencathra, because he has an absolutist way of delivering his ideas. But his ideas here have prompted other noble Lords to a very sensible suggestion that we need to look further at this We have to look at this question with great compassion —compassion for women who feel uncomfortable and compassion for women who are trans. We all know that, sometimes, people are born with mixed chromosomes. It is not black and white. It is a very complex issue. The suggestion of the noble Lord, Lord Hunt of Kings Heath—I see the noble Lord, Lord Blencathra, nodding —must be the right way forward. It needs to be looked at with great care and in great detail, by people who know what they are talking about.
My Lords, I very much agree with the noble Lord, Lord Hunt, and others. I was here for 20 years during the struggle for single-sex wards, and it was a notable achievement of the Benches opposite that they got there. I remember, in those long debates, getting a real understanding of the distress that women felt at being made to suffer in mixed-sex wards. I do not think it is right to destroy all that just in the cause of a small group of patients The rights of women need to be considered alongside those of trans people. Both matter, both are important, and we should not, as Stonewall has sought to do, bend the law to impossible interpretations and impose that covertly on the National Health Service. We should try openly to discuss this difficult issue and arrive at a compassionate solution that does our very best for all patients. I have faith that if the Minister promises that, we will get that.
My Lords, the noble Lord, Lord Hunt, used the important word “contention”—a contention that there is a tension between the rights of women and those of trans women. He and I disagree about that because I believe that they both deserve to be treated properly and respectfully. I believe that the Equality Act enables that to happen It is that Act which enables there to be single-sex provision. It is precisely because there are occasions and times when it is important for that to happen that we have to embody it in law, otherwise it could not exist. That is why under the Equality Act there is a specific statement that there should be safeguards in place, that there are special circumstances where treatment needs to be sex-specific, and that where it is assessed that a trans person should be put in an otherwise gendered ward, such departures are allowed but they need to be proportionate to achieving “a legitimate aim”. Like my noble friend Lady Brinton, I do not believe that making assumptions about a person because of the way they look is a legitimate aim I have listened carefully to all the speeches that have been made, and they have contained some very powerful contentions and assertions. What they have not contained is any evidence at all that this is a significant problem in the NHS. The amendments would cause a significant problem in the NHS—for all patients, not just trans patients, if one thinks through the implications of what has been written in them. Day to day, NHS staff routinely have to deal with patients of all sorts, with all sorts of difficult problems, and as professionals they make judgments day in, day out about what is appropriate care. Unless and until there is significant evidence that backs up the assertions and contentions of the noble Baroness, Lady Nicholson, and the noble Lord, Lord Blencathra, I believe we should leave them with the guidance that has worked perfectly well up till now.
My Lords, I intend to be brief because we do not believe that these two amendments are either necessary or appropriate in the context of the Health and Care Bill. If the Equality and Human Rights Commission is conducting a wider review into single-sex services then we should consider those issues at that time, but not in the context of this Bill I agree with the noble Baroness, Lady Brinton, that the Equality Act 2010 and the 2019 NHS guidance Delivering Same-Sex Accommodation already provide an effective mechanism for inclusion in the context of single-sex wards. The two amendments seek to cut across long-standing provisions in both the Act and the guidance. There is no substantial evidence to suggest that the status quo is not working and that NHS professionals are unable to use the existing guidance, which clearly sets out the principles and practice to be followed We also consider that the amendments could do harm if implemented, because they would create a blanket rule requiring trans women to be treated on men’s wards and trans men to be treated on women’s wards. At best, that would create an environment contrary to the dignity and well-being of the patients. At worst, it would leave trans patients at the risk of harm and abuse by outing them in a public context at a time when they are particularly vulnerable Like other noble Lords, we have received a detailed briefing from Stonewall imploring us to oppose these amendments. Given that we do not consider that the Bill is the right place for the consideration of these issues, we will not be lending our support to the amendments.
My Lords, I am grateful to my noble friend Lord Blencathra for bringing this discussion before the Committee and to my noble friend Lady Nicholson for taking the time to meet to discuss this issue, on which she is a strong advocate It clearly arouses strong feelings, but it is really important that we remember two principles: dignity and respect. There are people who feel they were born in the wrong body, and we should respect their rights as trans men or trans women; at the same time, there will be some women in wards who, on seeing someone who, to them, seems like a man, may feel slightly vulnerable at a particularly vulnerable time—in hospital. It is right that we get the right balance I hope noble Lords will be aware that NHS England is currently reviewing the Delivering Same-Sex Accommodation guidance to ensure that it remains focused on privacy, safety and dignity for all patients. The NHS is committed to meeting its duties under the Equality Act and, as such, needs to give due regard to both those whose gender identity is the same as their biological sex at birth and those whose gender identity is not. This means that the rights and needs of women and trans women are equal in law Following the review, the new content of the guidance will be informed by engagement with a wide range of stakeholders and by the statutory duties of the NHS outlined in the Equality Act 2010, including the public sector equality duty. NHS England is currently under- taking this review and is fully aware of its importance. The guidance, which will be updated if appropriate, is due to be published later this year. I call on noble Lords not to pre-empt the outcome of the guidance review. Any guidance will—indeed, must—be compatible with the requirements and duties placed on NHS bodies by the Equality Act 2010 I am aware that concerns have been raised about the safety of women in single-sex wards. We, as a Government, believe that violence of any kind has no place in NHS facilities. We expect that hospital staff will act in the best interests of all patients and can, if necessary, call on security staff and law enforcement to ensure that everyone is safe. I repeat my request to my noble friend Lady Nicholson for evidence of such cases, whether it be women who feel uncomfortable or patients or staff who have raised concerns and been accused of being transphobic. If that is the case, I ask her to bring these cases to my attention and we can look at them further However, given that NHS England is currently reviewing the guidance, I hope noble Lords can appreciate the need to allow it time to review it in full. I ask the noble Baroness to withdraw her amendment.
I thank the Minister very much for his immensely helpful statement, while reminding him that the rights of another group do not supersede the rights of the group that is already there. In other words, it is not really worth listening to the simple comment, “Women and trans women are equal”. We are all equal under the law; we all have dignity and equal rights. My contention is that the dignity, privacy and safety of women patients, which have been fought over for several decades in both Houses, are now being diminished significantly and their health and recovery from illness significantly undermined by the imposition of new rights of others on top of women’s rights. It amuses me that no one is suggesting they should be on top of men’s rights This is, I am afraid, a matter of great concern to all women. I know that Members of other Benches have demanded evidence. I can guarantee that, within 24 hours, if you wish it, I can get 20,000 to 40,000 letters in front of the Minister claiming that women need privacy, safety and dignity, and that they are not receiving it with these new impositions. If noble Lords want evidence, feel free.
My Lords, Amendment 297L seeks to introduce mandatory training in learning disability and autism for all health and care staff. My noble friend Lady Bull is unable to be in her place tonight but asked me to express her strong support for this amendment The amendment is important because of the sheer scale of health inequalities that people with a learning disability and autistic people face. According to NHS England, people with learning disabilities have a median life expectancy 20 to 30 years shorter than those without a learning disability. In 2014, the Confidential Inquiry into Premature Deaths of People with Learning Disabilities found that 37% of those deaths may have been avoidable with better-quality healthcare There are a number of obstacles to achieving better outcomes. These include the low confidence of health and care professionals in their ability to identify and treat serious illness in these groups. The amendment aims to increase their knowledge and skills so that they can provide equitable care for people with learning disabilities and autistic people For many years the Government’s view was that mandating standards for training was not needed and that awareness raising should be enough, but then 18 year-old Oliver McGowan died—another tragic and wholly avoidable death of an autistic man with a learning disability. I could name so many grieving families who hope for some justice for their sons and daughters—families who hope that no other family will have to go through what they did. Oliver’s mother, Paula McGowan, is one determined lady and she persuaded the honourable Caroline Dinenage, then Minister of Health, to commission, pilot and evaluate the Oliver McGowan mandatory training programme for all health and social care staff. I welcome the Government’s continuing commitment to introduce the training. The evaluation of the three pilots is nearly ready. So, what will happen then and how soon will the promised training begin? Of course, there are practical issues in rolling out an effective training programme nationally. I can understand possible government concern about the potential cost of introducing this, but these concerns should not hold us back from putting on statute something that the Government have agreed to. Oliver’s name was not permitted on the amendment but naming the training after Oliver would not only pay tribute to him and his family who have campaigned so hard but would remind us, and those doing the training, that this is not some dry academic subject. It is about people like Oliver: people who can be put at serious risk if staff are inadequately trained One aspect of the amendment goes beyond the Government’s existing commitment. This is the proposal for a code of practice with guidance on how the training would be created and delivered. The code would ensure that the key asks of campaigners would be put on a statutory footing, particularly the co-production and co-delivery of training with those with lived experience. Without this, I fear that the training would not reflect the key issues which people with a learning disability and autistic people face on a regular basis in the NHS I recognise that training might vary in detail depending on whether or not staff have a patient-facing role, and that clinical staff need a higher level of skill. I designed and led the delivery of training for medical students and trainee psychiatrists at St George’s Hospital Medical School for around 30 years, directly involving experts by experience from the beginning. This included working with disabled arts groups. For 20 years, I employed people with learning disabilities on the teaching staff to co-deliver the teaching and to participate as standardised patients in final clinical examinations. This meant that students had a chance to practise the communication skills that are central to improving outcomes for their patients; online training does not work to the same extent Currently, this type of education is dependent on a champion such as me to sustain it and that is a key reason why it needs to be mandated. One challenge that I am expecting from the Government is that it would be difficult to recruit and train experts by experience. I challenge this, given that only 6% of people with learning disabilities and 18% of autistic people are in paid employment. There is a ready workforce if there are willing employers and there are a number of academic departments able to offer the very simple and straightforward training and support they would need It is also crucial for the training to reflect and link with existing pieces of legislation and regulations such as the Autism Act, the learning disabilities core skills education and training framework, and the core capabilities framework for supporting autistic people. The amendment would require the code of practice to incorporate these and to ensure that any revisions to these regulations and legislation would be reflected in the code of practice and the training delivered. Building on this theme of co-production is the amendment’s requirement for the Secretary of State to “consult such persons and bodies as they consider appropriate” in the development of the code. I hope the Minister will welcome this amendment, given the cross-party support that the development of the Oliver McGowan mandatory training programme has received in the other place. I beg to move.
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
My Lords, I am delighted to support Amendment 297L from the noble Baroness, Lady Hollins, which proposes mandatory training on learning disability and autism and how to care for people in the health sector. The amendment is also signed by the noble Baronesses, Lady Bull and Lady Merron People with learning disabilities and autism need to be cared for by those who really understand their condition so that they can carry out their roles effectively. This amendment formalises that in terms of the plan, what needs to be covered and what the code itself needs to cover. Those of us who have family members with learning disabilities or who have worked closely with them know that this specialist understanding is vital, and for a broader range of people working with them than is usually understood The noble Baroness, Lady Hollins, highlighted the need to ensure good understanding of health issues and how they are managed. Oliver McGowan’s story is shocking and we need to ensure that it is not repeated at a strategic level. During the pandemic we heard of far too many “do not attempt resuscitation” orders for people with learning disabilities. Indeed, it took some considerable time to get access to Covid vaccines for people with Down’s syndrome and other learning disabilities, even though they were more susceptible. It took too long to get that changed. My Down’s nephew in Spain is still not entitled to a vaccine In an earlier amendment we discussed abuse in institutional settings. Last year, there were some appalling undercover videos of staff physically abusing autistic students at a residential school. One of the comments was that it was evident that some staff had not been trained to understand and manage autism. Training is not needed just to prevent bad behaviour; well-trained staff in health and education settings are a joy to watch when they are working with those they are supporting, and it can truly enrich their lives.
My Lords, I rise briefly to speak in support of this amendment. I declare my interest as a vice-chairman of the All-Party Group on Autism and the grandfather of a child with very serious autism. In particular, I want to emphasise a point which I think I have made before in this Chamber about the problems of achieving a diagnosis. You achieve a diagnosis when people start to recognise the problems that a young person is suffering from. Carers do not get any kind of services until there is a recognition of the condition by people in the different agencies I thoroughly support this amendment, because it would put on a statutory basis the need to improve training for a range of people who are likely to come in contact with the family from time to time, so that they are on the lookout for this condition, which, I can tell the Committee, can be very disruptive to family life and very difficult to deal with. The people who are carers of young people with autism have a terribly difficult job and a tremendously difficult road to travel. So the more help we can give clinicians and professionals in recognising the condition and bringing help to these families, the better.
My Lords, I too support this amendment, which is absolutely in tune with reducing health inequalities for a particular section of our population and should be warmly supported across the House.
My Lords, I thank the noble Baroness, Lady Hollins, for this amendment. Like others, I pay tribute to her tremendous work on behalf of people with learning difficulties and autism, which we all acknowledge and respect The amendment would reinforce and hasten the implementation of and the legislative basis for the Government’s commitment to developing a mandatory training and professional development system for health and social care staff. It would also establish a statutory code of practice, to be updated every three years, setting out guidance on the content, accreditation, delivery, monitoring and evaluation of the training The NHS England pilots for the modules to support the development of the training are currently under way, as the noble Baroness said. They involve key stakeholders, including Mencap and the National Autistic Society. It would be helpful if the Minister could provide the Committee with an update on the progress and timescale for completing and assessing the pilots and for moving forward and implementing the new training system The amendment is comprehensive in terms of both amending the 2014 regulations under the Health and Social Care Act 2008 and setting out issues that the code must address, including the relevant core education and training frameworks and strategies applying to learning disabilities and autistic people. It also contains the definitions of autism and learning disability on which the code should be based In this debate, we are all sadly reminded of the tragic death of Oliver McGowan, who died after those treating him medicated his autism incorrectly. His mother’s petition and determined campaign for mandatory training is thankfully coming to fruition, so that we can ensure that all staff receive proper training and can develop the skills and experience needed to provide the safest and most effective care and support for people with learning difficulties and autism. Including the mandatory training requirement on the face of the Bill would be a major step forward and I look forward to the Minister’s response.
My Lords, I too am grateful to the noble Baroness, Lady Hollins, for bringing the important matter of staff training on learning disability and autism for the health and social care workforce before the Committee today. Evidence tells us that there is a pressing need to improve understanding and awareness of learning disability and autism among health and social care staff and that the staff themselves want this training. Introducing mandatory training is an important way in which we can address persistent disparities in health and care outcomes for people with a learning ability and autistic people. As we set out in the Right to Be Heard publication of November 2019, the Government have committed to requiring all NHS and social care providers who carry out regulated activities to ensure that their staff have achieved the learning outcomes relevant to their role.
My Lords, I thank noble Lords who have spoken in this short debate. I am disappointed that the Government do not feel that it is timely. March is just one month away—by the time the Bill becomes an Act and is implemented, it will be here. This amendment does not set in stone exactly how the training would be implemented. It talks about a code of practice which would, after consultation, develop the means and the method I know that questions were asked about whether the aim was to mandate a standardised and evaluated training and to define a set of standards in schools that have to be met, and that Paula and Tom McGowan favour a standardised training programme, the Oliver McGowan mandatory training programme. I want to end by again acknowledging and putting on record my appreciation of the hard work they have done. It will stand people with learning disabilities and autistic people well in the future. I look forward to further conversations with the Minister. There does need to be a link to health outcomes, whatever route is taken, through the national mortality review, and a willingness to review the adequacy of the programme on a regular basis, and I would be happier if it were in the Bill. I beg leave to withdraw the amendment.
My Lords, I welcome the intention to make the Healthcare Safety Investigation Branch a statutory body. We know that healthcare is very complex and that adverse events unfortunately occur very regularly. Recognising that weak safety systems create the conditions for the inevitability of error is vital to achieving high levels of patient safety. The noble Lord, Lord Patel, and I chaired the National Patient Safety Agency at different times, and we saw there the problems of having an agency where there was no mechanism for turning its work into appreciable action in the health service. I have great hopes that the HSSIB may well have a major impact on how the NHS improves safety In 2019, we had a Bill that was interrupted by the general election, and we now have these clauses in this Bill. Prior to the Bill in 2019, there was pre-legislative scrutiny from a Joint Select Committee of both Houses. This Select Committee argued that the most critical priority is to ensure that the prohibited disclosure of safe space provisions is fully fit for purpose in protecting the identity and statements of individuals who participate in our national safety investigations. The whole concept of safe space is so important. Without people in the service having the confidence to be able to tell the branch what is happening and where things have gone wrong, I do not think the branch is going to be able to work effectively It is very significant that the Select Committee concluded that any concession to safe space proposals—to coroners, for example—might significantly harm the branch’s ability to conduct effective safety investigations and would undermine one of the core principles under which the branch is being established. The Government have never once given any explanation of why over 90 coroners should be allowed to override the safe space concept I am very disappointed to see that the senior coroners can, under paragraph 6 of Schedule 14, “require the disclosure of protected material by the HSSIB” I am very supportive of the amendment of my noble friend to remove those coroners. In fact, I do not believe this is going to work unless we succeed in doing so. I look forward to some decent, substantive explanation—not just that the MoJ insisted on it, which we think is probably the real reason the Department of Health failed to stop this—as to why coroners should be allowed to impede the success of this endeavour The leadership of this organisation is clearly critical, and we have seen in recent weeks just how critical. The Joint Select Committee thought that, to emphasise the wider accountability of the HSSIB to Parliament, both the chair and the chief investigator should be subject to pre-appointment scrutiny by the Commons Health and Social Care Select Committee. The Government agreed at that time to have a look at it, and I would be grateful if the noble Baroness could tell me what the conclusions are. Again, I would say that, in the light of recent very unfortunate experience within the leadership of this organisation, parliamentary scrutiny is very much justified There is some debate about whether the Secretary of State should have the power in Clause 97 to direct the branch to carry out an investigation. I do not think that undermines the independence of the branch. I think it is perfectly proper for the Secretary of State to be able to order an intervention; after all, he or she is responsible for the NHS to Parliament. But it is sensible that that power should not be unlimited and that the branch should have sufficient resources to carry out such an investigation and not have all its work diverted because of a request or instruction by the Secretary of State—hence my Amendment 309 It is also important that, where an investigation is carried out under such a direction, a copy of the final report should be laid before Parliament, setting out what action the Secretary of State proposes to take in response to the report. That is the subject of my Amendment 310 In Clause 115, the oversight functions of the Secretary of State are laid out, including a power of direction in the event of HSSIB failure. That is quite normal. Such direction may not direct the outcome of a particular investigation. That seems sensible to me, but it should happen only in exceptional circumstances, and in the interest of transparency and accountability, the clause surely needs strengthening through my Amendments 312AA and 312AB I think the Government will find there is a great deal of support for the establishment of the branch as a statutory agency, but unless they can resolve the safe spaces concept and strengthen the governance, this branch may have some difficult challenges in the future. I beg to move.
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I now invite the noble Baroness to speak.
My Lords, I will speak to first three amendments in this group, but I support the others The office of the Health Services Safety Investigations Body is vital. It has the capacity to make the step change in patient safety that Parliament has been asking for on a regular basis, over many years. Amendment 308 makes it clear that it is vital that there needs to be scrutiny of the appointment of the chair and the chief investigator by Parliament. The history, outlined by the noble Lord, Lord Hunt, but also in the amendments your Lordships’ House has considered during the course of the Bill, arises very much out of the recent First Do No Harm report, which the noble Baroness, Lady Cumberlege, led. This was a recommendation, as the noble Lord, Lord Hunt, said, of the Joint Select Committee, pre 2019. It emphasises the public scrutiny of these appointments, the importance of the HSSIB and the fact that it must fulfil its duty to the best of its ability and be very much in the public eye Amendment 308A talks about financial stability over a period of years. It is all too easy for new bodies being set up by the Government to have a one-year budget. I am thinking, just as an example of the moment, about the position the public health budget has been in, where there is no stability at all. Quite often, in March, health bodies find out exactly what they will get to start the next financial year in April. Let us not do that with the HSSIB. Let us give it a three-year plan for financial stability Amendment 309 is vital if the HSSIB is going to succeed. It has to have adequate funds and resources to carry out one of its core roles—that of investigation I also echo the concerns of the noble Lord, Lord Hunt, about coroners, and support the amendments in the name of the noble Baroness, Lady Young.
My Lords, I will speak to our Amendments 310A, 311A, 312A and 319, and I thank the noble Lord, Lord Patel, and my noble friend Lord Hunt of Kings Heath for their support. I declare former interests as a chair of the Care Quality Commission and a recent chancellor of Cranfield University, which has a major teaching research role in air, rail and accident investigation in the UK and globally I share the view of my noble friend Lord Hunt that this is an important step forward for patient safety. The whole point of setting up the HSSIB is its independence and the concept of safe space and protected material. However, the Government, having made a good call in proposing that it be set up in these terms, have immediately screwed up—if noble Lords will pardon the technical term—by eroding its foundations from birth I know we are not supposed to rely on Explanatory Notes, but I will quote them, as they give some indication of the original and admirable intentions of Government: “The Bill creates a ‘safe space’ within which participants can provide information to the HSSIB for the purposes of an investigation without fear that it will be disclosed to others.” This good model can be compared with the air, rail and marine accident bodies. Safe space enables the improvement of safety by promoting learning and not attribution of blame. This is a founding principle behind establishing a safe space. The importance of safe space is well documented in air accident investigation. The key point is that the evidence is collected on a not-for-blame basis and cannot be utilised in another, different sort of investigation. There are UK and international examples of the chilling effect of the impact of compromising the safe space principle. I can provide them for the Minister, if she would like them One of the most graphic examples I heard was a fatal air accident in New Zealand where police seized the cockpit voice recorders. The result was that pilots across New Zealand no longer trusted the CVR data to be protected as a matter of principle and withdrew their co-operation from the collection of cockpit voice recorder data. In fact, they routinely disabled the CVRs after the start of each flight and reported it as a fault. This withdrawal of co-operation continued until full protection of the CVR data was put in place in line with international standards. That is a sign of what can happen to a community of interest if they do not feel they can trust the rules.
My Lords, this is my only intervention on this Bill, and I will limit myself at this hour to speaking to my own Amendment 309A, which deals with whistleblowers. I want to make a slight distinction from the safe space discussion, because for very many whistleblowers, if not the overwhelming majority, safe space becomes an irrelevance. They have raised their issues with their colleagues and with management. They have often raised the issues in very public settings and have been identified. Sometimes—often, in fact—the information they have is so particular that they can be identified easily by the organisation from the issues on which they are speaking out When I looked at this Bill, I was absolutely stunned to see that we were creating a Health Services Safety Investigations Body without any mention directly of whistleblowers and just some minor reference to disclosure. I am afraid that this tells us something about the attitude of those in charge of the health sector, and sometimes that of the Government and Ministers Whistleblowers have been absolutely key to exposing scandal after scandal but are treated quite disgracefully by the system. Typically, they are ignored or disbelieved, often for years—and that is when they go out beyond even a safe space, if that is available to them, and begin to talk to the media out of desperation to make action happen. Attempts are then made to silence them, typically by the offer of settlements that contain aggressive non-disclosure clauses, called confidentiality clauses here in the UK, which are both common and very aggressive within NHS settlement agreements. Many whistleblowers are subject to aggressive retaliation, requiring them to fight for as long as seven years through employment tribunal systems just to clear their names and sometimes be awarded some compensation for a career completely destroyed Yet without whistleblowers, failures in healthcare, whether from incompetence or abuse, would rarely be exposed and would remain hidden for much longer. Let me repeat what I have often said before: whistleblowers are the citizens’ army that provides crucial information to regulators and enforcement bodies. They are the canaries in the mine that the HSSIB will need. If it treats them with respect and—even more importantly—protects them, they will provide deterrence, which is always better than cure When I raised this with Ministers, the answer I was given is that whistleblowers are protected in the healthcare system by the National Guardian’s Office and some 800 “freedom to speak up” guardians put in place after the damning Francis report in 2015. Guardians are typically NHS trust employees, already busy but taking on additional duties. Ministers may say that over 20,000 cases were raised to such guardians last year, but the guardians, no matter how much they might have wished to do, in most cases have been able to do little more than provide advice and direct people to various channels of reporting. Unfortunately, the guardian system has no power to enforce action following a disclosure and no tools to protect a whistleblower from retaliation. “Guardian” is a misnomer There is no time today to go through the individual cases of whistleblowers as each is incredibly complex. I have in my pile of papers evidence from seven very different whistleblowers, which I will summate. Dr Kevin Beatt and Dr Raj Mattu are leading cardiologists. There is no way they could have reported their complaints in a safe-space system; they would immediately have been identified as those who are bringing forward the issues. Mr Peter Duffy is a urological surgeon, Mrs Sue Allison is a radiographer, Dr Chris Day is a junior doctor, Steve Turner is a nurse and lecturer and Dr Ed Jesudason is a paediatrician. Between them, they spoke up on issues including a cover-up of preventable children’s deaths, understaffing and overcrowding, unsafe surgery due to specialist staff shortages, lax attendance by senior doctors, bullying and blacklisting Every one of those seven suffered terrible retaliation. Some are still fighting, some have been vindicated after long, bruising struggles and one has even received an MBE, but they are the tip of the iceberg. From speaking to just one civil society group, WhistleblowersUK, I found that it was inundated by calls from whistleblowers last year, who had found no adequate response from the National Guardian’s Office or the Care Quality Commission My amendment gives the HSSIB responsibility for setting in place a secure process for whistleblowers to report safely and confidentially any concerns on patient safety. In a sense, you could look at it as a safe space arena. It also requires transparency, at least in aggregate, about how the HSSIB acts on that information. The amendment goes well beyond a safe space, which is a reflection of the current Public Interest Disclosure Act, by offering confidentiality to everyone, not just employees. It also requires the HSSIB to report any retaliation against whistleblowers to the Secretary of State I hope the many whistleblowers who are suffering acute detriment under the current system or are too afraid to speak out can read Hansard tomorrow and hear from the Minister some positive and powerful responses to this amendment.
My Lords, I am also rather nervous. I spoke at Second Reading about how worried I was by the exclusion of the ombudsman—the PHSO—from the provisions to create a safe space for investigations carried out by the HSSIB. The safe space is of enormous significance, although I agree with the noble Baroness, Lady Kramer, that there is an issue about where whistleblowers fit—that is right. We need the safe space but, as currently drafted, the Bill cuts across the unique and long-standing role of the Parliamentary and Health Service Ombudsman to investigate complaints about the NHS. Although I take the point of the noble Baroness, Lady Young of Old Scone, that the number of cases are very few, there is a constitutional principle here.
Will the noble Baroness admit that, in reality, the ombudsman has for many years undertaken that valuable work without having access to the safe space because the safe space did not exist? It can continue to do so by gathering evidence afresh in the way that it does in many other cases that are not going to be dealt with by HSSIB.
Of course I accept that, but I do not think it is right. Once the safe space exists and is part of the system, and the ombudsman has those rights—or traditionally has had those rights—we have to allow the ombudsman, who does not reveal the material and does not name names, access. We are obviously going to disagree on that I am no legal expect, and my noble and learned friend Lord Etherton will deal with the legal and constitutional principles. However, I ask the Minister to look again at this and to consider removing the coroners from the safe space, an approach that makes no sense at all, but allowing the ombudsman—the PHSO—to have access on condition that there is no disclosure to a third party, thus retaining the important role that the ombudsman holds in our constitutional arrangements.
My Lords, I have added my name to Amendment 311 in the name of the noble Baroness, Lady Neuberger. The heart of the complaint which has prompted the amendment is that the Bill fails to provide a proper balance between the role of the HSSIB and the role and standing of the PHSO, and it fails to recognise and provide for the PHSO to be treated as part of the HSSIB’s safe space under the Bill The Bill’s prohibition on disclosure by the HSSIB to the PHSO of material obtained by the HSSIB in connection with its investigation of incidents that may have implications for patient safety impedes the statutory functions of the PHSO, diminishes the standing of the PHSO, is contrary to the independent, non-judicial constitutional role of the PHSO, and is contrary to the UK’s obligations as a member of the Council of Europe and the United Nations regarding ombudsmen The PHSO in his role—and it is a “he” at the moment —as the Parliamentary Commissioner for Administration acts pursuant to the statutory framework in the Parliamentary Commissioner Act 1967; and, as the Health Service Ombudsman, he acts pursuant to the Health Service Commissioners Act 1993. Under those statutes, his role is to investigate complaints by members of the public who claim to have suffered maladministration or to have sustained injustice or hardship in the delivery of a health service The legislation which I have just mentioned effectively gives the PHSO unrestricted access to evidence and other information in order to carry out his investigations fully and effectively. As the noble Baroness, Lady Neuberger, has said and as is obvious, there will often be an overlap between the work of the PHSO and that of the HSSIB both in respect of particular incidents and in relation to general inadequacies in practice and procedure—reference has been made to eating disorders and learning disabilities. There are very limited exceptions under the Bill for disclosure by the HSSIB of protected material to third parties. These do not include routine disclosure of evidence and information which is relevant to investigations by the PHSO, who will be able to obtain such material only if he obtains an order from the High Court. This is so even if both the PHSO and HSSIB are investigating the same incident and even if the PHSO in his capacity as parliamentary commissioner is investigating a complaint by a person of maladministration on the part of the HSSIB itself. This simply does not make any sense. Notwithstanding the observations made by the noble Baroness, Lady Young of Old Scone, it seems that the restriction on disclosure is based on a misunderstanding about the confidentiality of material held by the PHSO and about the safe space in which he currently operates. The legislation governing the PHSO provides that he must conduct his investigations “in private”. Subject to limited exceptions, the PHSO is not permitted to disclose to third parties information obtained in the course of an investigation. Disclosure cannot be made by the PHSO in any circumstances where that would be contrary to the public interest. Information obtained by the PHSO is also subject to absolute exemption from disclosure under the Freedom of Information Act 2000. No persons are identified in the PHSO’s reports, and names are anonymised. Mirroring the safe space provisions in the Bill for HSSIB investigations, reports of the PHSO do not apportion blame to individuals, and do not assess or determine civil or criminal liability or whether disciplinary action needs to be taken Furthermore and critically, the terms of the proposed amendment would impose a complete legal block, prohibiting the disclosure to a third party of any protected material disclosed to the PHSO by the HSSIB except by order of the High Court, and then only for certain very limited purposes. The effect of the existing statutory provisions and the conditions in the amendment prohibiting disclosure to third parties mean that the PHSO and the HSSIB fall legally and naturally within the same safe space As presently worded, this will be the first occasion on which the PHSO’s access to information will have been curtailed. At the same time, in extending the right of disclosure of the HSSIB’s protected material to coroners, the Bill discloses an incomprehensible inconsistency, since not only are inquests increasingly adversarial, as has been noted by a number of speakers, but such disclosure is not allowed by the PHSO under the PHSO’s governing legislation. As the noble Baroness, Lady Neuberger, has said, ombudsmen are internationally regarded as having a constitutional role in addressing the imbalance of power between the individual and the providers of public services, and in their autonomy and independence from the executive and judicial branches of government. That constitutional role is enshrined in the Venice principles adopted in 2019 by the Council of Europe and by the UN’s General Assembly in 2020. A written opinion of the Venice Commission, published in October 2021, concluded that the exclusion of the PHSO from the safe space created by the Bill, and denying the PHSO to full access to the HSSIB’s protected material, would be contrary to the Venice principles. It would therefore place the United Kingdom in breach of its international obligations. The amendment is, for all those reasons, both necessary and desirable.
My Lords, I will try to be brief, and to cover the points about the exercise of a patient safety investigation and learning from it, which is the important part. My name is on amendments tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Young of Old Scone. I listened carefully to my noble friend Lady Neuberger and my noble and learned friend Lord Etherton. I could not argue with him on constitutional matters; I would not even try to. But I can say this: after nearly five years of experience as chairman of the National Patient Safety Agency, which carried out such investigations—it was an arm’s-length body rather than a statutory one—the purpose of the exercise is to use an index case, where an event may have led to harm to a patient, to learn if there was a systems failure. If an event happened in one hospital, the chances were that it was also happening in other hospitals. The aim was to do an in-depth, root-cause analysis to get the necessary evidence in detail, and to find out where the systems failure might be occurring. I can give you several examples of what happens and how it can be corrected I agree with the noble Baroness, Lady Young of Old Scone and the noble Lord, Lord Hunt of Kings Heath, and with my noble friends that the coroners should not be able to invade the safe space and access the protected material. If I was asked to choose between the coroner and the PHSO, I would choose the PHSO, because of the less adversarial way of dealing with matters There are two problems in the legislation. One is compulsion: as a doctor, I will be compelled to give the evidence and the information required by the HSSIB to investigate a case and to find out where the systems failure might be. That compulsion comes with a protection—that the information I give will be completely protected from being used by anybody else against me or in any other legal procedures that may arise. That will give the health professionals or anybody else the confidence required that there is openness, honesty and transparency, because the purpose is to have as much information as necessary to find the systems failure that may occur If you look at the list of the 22 investigations carried out by the HSIB so far, you will find that they tend to be generic. I could read out the list, but I will not. They are not about individual investigations. I take the point that the PHSO’s role is to protect against harm done to an individual but also to deal with the system failures that may occur—I get that. My plea would be that to make the HSSIB a success, the principle of protecting the information given in confidence is a key part of the whole process. If that confidence is destroyed in any way at all, the whole exercise will not work.
My Lords, I will be brief. I am not a medical expert, as many are in this Chamber, but I have seen at close hand the value of the PHSO, particularly in the report in 2017 into eating disorders. For the reasons that I saw in that report, I have added my name to the amendment from the noble Baroness, Lady Neuberger I appreciate the need for a safe space. However, there are two things that I would like to say. First, to follow on from what the noble and learned Lord, Lord Etherton, said, the PHSO does not apportion blame to individuals; it looks at systemic failures. It did this so well in its report on eating disorders, where it looked at failures across the system, rather than at individuals. Therefore, I think that medics, who are extremely intelligent people, will understand that it is not about apportioning blame and so they have nothing to fear—there will be no chilling effect on them as individuals, because it is about the systems Secondly, and again as the noble and learned Lord, Lord Etherton said, the way the amendment is structured includes the ombudsman within the safe space, because there are such strong protections; the information given to the ombudsman cannot be released unless you go to the High Court. That is a very strong, ironclad protection, and again, I think medics would understand that and see that it is not something that would diminish the value of the safe space The point that I particularly want to make, since others have made the point about the constitution far better than I could, is that if there is this information in the future that the HSSIB has but the ombudsman does not, that will fundamentally undermine public confidence in the ombudsman’s ability to do its job. Let us not forget that the ombudsman is the last resort for members of the public when they have been let down by the NHS. If it does not have information that other people can get, what does that mean for people having confidence in the transparency and value of that process That is something that has not been mentioned so far tonight: the confidence of the public in the ombudsman to carry out its constitutional role to protect people and their families when there have been appalling failures, to give them some sense that someone may not have to go through this in the future because the ombudsman has set in train a process that will make the system better As I say, I do not know enough about autism—the noble Baroness, Lady Hollins, is not in her place to do it but there are other people who can talk about the role of the ombudsman and the importance of the report that it did on autism—but I know from my involvement with eating disorders that the work of the PHSO in its 2017 report was seismic in working alongside those of us who campaign desperately for changes in the treatment of eating disorders. It has done so much to give some sense of security to individuals and their families who have been let down that things might change. If we do not accept this PHSO amendment, public confidence in anything in the future will be fatally undermined.
My Lords, I support the intervention by my noble friend Lord Patel. In so doing, I declare my own interest as a registered medical practitioner. The issue is a complicated one. There is no doubt that the work of the HSIB is critical to ensuring that we can continue to drive patient safety at the heart of clinical practice The safe space is essential for a number of reasons that have been clearly recognised and, indeed, described in this debate. One of the most important features attending the safe space is a recognition of the fact that modern clinical practice is very complicated. It is a question not only of medical practitioners but of a broader team of healthcare practitioners who come together to deliver care, all of them recognising the opportunity for them to contribute to ensuring that lessons are learned where intervention, clinical practice and, indeed, broader health service intervention have failed individual patients in the system It is also complicated because there are other bodies that play an important role, such as the ombudsman and coroners, but I believe an infringement of that safe space has the potential to truly undermine the capacity for all involved in the delivery of healthcare to learn from individual experiences, and from system failures more broadly, to ensure that mistakes and inadequacies in the delivery of clinical care and practice are not repeated and that we can continue to improve and deliver higher-quality and safer care for all patients The question is how these tensions and inconsistencies are addressed in the Bill. It is important for Her Majesty’s Government to be able to reassure people that the safe space is not undermined; that all healthcare professionals are able to contribute in an open, transparent and confident way to investigations that are established; and that in so doing they can feel confident not only with regard to their own position—of course, their first duty must be to those who for whom they have the privilege to care—but that they can ensure that all others, as part of the team delivering services, are able to come together to contribute to those investigations Certainly, it would be wrong to undermine the position of the ombudsman—that would be detrimental. A loss of confidence in the ombudsman service would be a detrimental consequence of this particular Bill. But we have also heard that the coroners’ process is increasingly adversarial, and that undermines confidence. It would undermine confidence in the work of the investigative body if that anomaly were to continue as part of the passage of the Bill Ultimately, the focus must be on the interests of patients, and, as currently drafted, the Bill fails to achieve that critical interest. I hope that Her Majesty’s Government will consider amendments in this group and determine how these tensions and inconsistencies can be resolved, ultimately for a purpose that I think all Members of your Lordships’ House agree on: namely, ensuring that we can continue to improve the delivery of our services and health system to ensure not only the highest quality but the greatest safety for all patients attending our healthcare institutions.
My Lords, from these Benches we welcome the fact that the HSSIB is to be put on a mandatory footing. The intention of the legislation is to create a safe space in which to shine a light on systemic failures in the NHS, and to learn lessons rather than apportioning blame The key to the success of this work is the independence of the body and the confidence of both patients and the workforce, so that those providing evidence can give a full and candid account of what happened. Whistleblowers in particular must be protected because there is substantial evidence that, in the past, they have been penalised for being public spirited—that must not continue. My noble friend Lady Kramer’s Amendment 309A would address that situation, and I support her However, there are some concerns. We support Amendment 308 because pre-appointment scrutiny is an element of the most significant public appointments. The chair and chief investigator of the HSSIB are posts that protect and safeguard the public’s rights and are vital for the reputation and credibility of the organisation. So I hope that the Minister will accept the amendment We support Amendment 308A because there is widespread recognition that the ability to do financial planning over a long funding cycle is valuable for all organisations. The Institute for Government has confirmed that multiyear allocations provide certainty and stability, which is what we want for the HSSIB. Sufficient resources are essential for it to carry out its job; however, if the Secretary of State were to direct the organisation to carry out an additional investigation, it would be only right that appropriate resources were allocated Amendment 319, in the name of the noble Baroness, Lady Young of Old Scone, would limit the Secretary of State’s power to direct the organisation to carry out a specified inquiry and report by a particular date. I agree that this could compromise the independence of the organisation, so I look forward to hearing from the Minister why the Government feel that this power is justified Amendment 310A, in the name of the noble Baroness, Lady Young, and several other amendments in this group would restrict the powers of the Secretary of State to allow information to be disclosed and would restrict other people, such as coroners, in obtaining information given in confidence. We support these amendments: coroners should not expect the HSSIB to do their work at the expense of risking its own work. A case has been made by the Parliamentary and Health Service Ombudsman for it to be allowed to have information. As my noble friend Lady Parminter has pointed out, the PHSO does not apportion blame; instead, it identifies systemic failures. It is concerned with systems, not individuals. Amendment 311 from the noble Baroness, Lady Neuberger, would provide a complete iron curtain on the disclosure by PHSO of any information originating from HSSIB, unless there is a High Court ruling. The PHSO has a constitutional duty to achieve justice for patients failed by the NHS.
My Lords, this has been a very detailed debate and has explored what is at the heart of the subject before us. It has focused very much on what it is to have a safe space—something to which I will return briefly. I want to thank my noble friend Lord Hunt for leading this group of amendments and I will not repeat the points he made so ably in setting them out. As the noble Baroness, Lady Walmsley, said, I hope the Minister will take these amendments in the spirit they are intended. Clearly, they have been very carefully crafted and debated in order to improve this section of the Bill, and I believe that they are very worthy of merit We on these Benches also support the development of a culture where staff feel able to speak up about mistakes without a presumption of blame. Since its creation, the work of the HSIB has placed an important focus on learning and improvement when things have gone wrong. However, there must be a balance with the need for appropriate accountability and redress, for the public to be protected from unsafe practices and practitioners, and for public confidence in the system to be maintained This debate has been rightly supportive of the HSSIB, its mission and the concept of safe spaces—on that I think there is agreement. There is also agreement that it must be independent to be effective and trusted. However, following this debate, it seems that there is much work to be done by the Government on reviewing where, and to whom, disclosure of information can be made. Although the debate has expressed agreement that it is not appropriate for coroners, with their adversarial role, to have such access—and I share this view—there is a finely balanced debate about the issue of the ombudsman. As the noble Lord, Lord Kakkar, said, this is complex—which I think is something of an understatement. The debate reflects the reality of the world in which the HSSIB seeks to improve the delivery of service The noble Baroness, Lady Neuberger, and the noble and learned Lord, Lord Etherton, have put forward their view that the ombudsman needs to be able to investigate robustly. I am sure there is agreement on that. I am sure the difficulty that the Minister will want to unpick as she takes away the views of your Lordships’ Committee today is how it will be possible to allow the ombudsman to do its job and yet retain safe spaces. As the noble Lord, Lord Patel, said, it is so important to give confidence to professionals that they can contribute to the investigations into systems failure I say to the Minister that I hope there will be a close examination of all the points put forward in today’s debate. I feel that by further investigation into and thought about the points that noble Lords have made, this part of the Bill can certainly be strengthened.
My Lords, I thank all noble Lords for this debate and reassure them not only that I have listened carefully to it but that the Government will of course again look carefully at the arguments made. As the Committee has heard, HSSIB is no ordinary investigatory body. It will look at systemic risks and focus on learning lessons. It is not about blame; it is about improving patient safety incidents across the system and making a real difference to patient safety The Government agree that the integrity of the safe space is paramount. Safe space conditions will encourage patients, families, NHS staff and other investigation participants to speak freely and candidly. Without guarantees that this information will not be shared, except in very limited circumstances, we risk eroding the confidence of all those participating in an investigation, potentially leading to information being withheld and reducing the effectiveness of the investigation I turn to Amendments 311, 311A and 312A. We have sought to strike a fine balance between protecting safe space and acknowledging the need for very limited exceptions. We have allowed senior coroners to have access to information from the HSSIB, but only when it is appropriate and necessary for them to fulfil their judicial functions, and not to disclose onwards without further protections in place. Where the HSSIB has information about a death which the coroner is investigating, we need to ensure that the coroner’s judicial role is not undermined and that they have accurate and clear information. It does not mean that the coroner will have complete access to safe space information—far from it—nor that they will be able to automatically share this information. We have drafted provisions so that this does not happen. It is an intentionally limited and contained exemption Regarding Amendment 311, the Bill’s provisions are likely to have a very limited impact on the Parliamentary and Health Service Ombudsman’s ability to fulfil its important independent role of investigating complaints, given that it will still be able to use its existing powers to obtain material directly from the same primary sources. It will often not be investigating the same incidents as the HSSIB, as we have heard in Committee. If the PHSO felt it needed to access protected material held by the HSSIB, it could apply to the High Court. We do not envisage this being a common occurrence, as the HSSIB’s purpose will be very different from that of the PHSO. However, it means that the PHSO does have a way to gain access to protected information in certain circumstances We are committed to monitoring the impact that the safe space provisions may have on the PHSO’s ability to carry out its functions. We shall report to the House of Commons Public Administration and Constitutional Affairs Committee on this issue within 12 months of the HSSIB being fully operational, which we expect to be 12 months after the Bill gains Royal Assent A number of amendments relate to the role of the Secretary of State in relation to the HSSIB. We believe it is appropriate that the Secretary of State can direct the HSSIB to investigate particular qualifying incidents. This is an important tool available to the Secretary of State, which enables him and the HSSIB to respond to emerging or ongoing patient safety issues, which may arise at any time. It would therefore not be appropriate or prudent to limit the Secretary of State’s ability to direct the HSSIB to the first 18 months of its operation More importantly, the Secretary of State would not be able to direct the HSSIB on how to conduct a particular investigation. Clause 115 rightly allows the Secretary of State to intervene if “the HSSIB is failing or has failed to exercise any of its functions, and … the failure is significant.” The Secretary of State is accountable to Parliament for the HSSIB’s performance, and it is in the public’s best interests that the HSSIB functions effectively I turn to Amendments 310A and 310B. Given the broad scope of the HSSIB’s investigation function, some flexibility is needed so that the Secretary of State can set out additional circumstances when the prohibition on disclosure—safe space—does not apply. It is vital that the HSSIB can adapt as clinical and record-keeping practices change on the front line and practice evolves. This power is about future-proofing and continuous improvement, not eroding safe space On Amendments 308A and 309, I understand the importance of the HSSIB having predictable budgets for planning, but requiring a three-year budget would cut across the established processes of spending reviews and put it out of step with the confirmation and allocation of budgets across government and other arm’s- length bodies Turning to Amendment 310, I reassure noble Lords that the HSSIB’s reports will be published. Organisations will generally be required to respond to the HSSIB’s recommendations and it may publish these responses. In some cases—for example, an investigation into a private provider—it would not be appropriate for the Secretary of State to publish an additional report I turn to Amendment 308. In line with the Cabinet Office’s Governance Code on Public Appointments, the chair of the HSSIB will undergo pre-appointment scrutiny by the Health and Social Care Committee. However, the appointment of the chief investigator, which is not a public appointment, will be undertaken directly by the non-executive members of the HSSIB, including the chair, with the consent of the Secretary of State. We believe that this strikes the right balance between scrutiny, accountability and operational independence, without compromising the effectiveness of the board Finally, I turn to Amendment 309A. Whistleblowing is a distinct legal concept, with an existing legislative framework to ensure that whistleblowers are protected. The purpose of the HSSIB’s investigations is to identify risks to the safety of patients and address them by facilitating the improvement of systems and practices in the provision of healthcare services in England. A disclosure to the HSSIB concerning patient safety is complementary to but distinct from whistleblowing, so it is right that it should sit outside that legal framework However, I reassure the noble Baroness, Lady Kramer, that information shared with the HSSIB to alert it to a patient safety issue will be protected by the safe space provisions if it fulfils the definition of protected material. If, as mentioned in the amendment, a concern is raised that conduct is illegal, we would expect it to be raised with an appropriate person. Similarly, concerns relating to unethical conduct would not be best dealt with solely by the HSSIB. This amendment would risk blurring the lines with other organisations which may be better placed to deal with such matters I suspect that I have not given noble Lords as much reassurance as they would like in order not to return to this issue, but I hope I have given them enough that they feel able withdraw or not move their amendments at this time.
My Lords, I am very grateful to the Minister—she was succinct but we certainly got the drift of the Government’s arguments. We have had just over an hour’s debate. Ideally, we would have taken this as a separate Bill, as we did in 2019, because these are clearly very complex issues. The heart of it is the tension between the purity of the safe space concept and the statutory duties of a number of officeholders, including senior coroners and the ombudsman. We will not resolve that tonight. The pity of it is that we will move to Report and probably vote on this; I cannot help thinking that there is a need for a proper round-table discussion before that to see whether we can collectively tease out a way forward. Having said that, it has been an excellent debate and I beg leave to withdraw my amendment.
My Lords, in this next group, the noble Baroness, Lady Brinton, is participating remotely Clause 81: Information standards Amendment 298
My Lords, we come to a debate on confidentiality of patient data. We debated some of this last week in considering my Amendment 145, on the power to disclose information relating to patients. I think there was general agreement then that public confidence in the handling of patient data by the NHS depends on the safeguards that are put in place. Without that public confidence, the huge potential we can see in the digital transformation of healthcare will not be realised, and that is behind the concerns I have raised in this series of amendments. They are linked together and are designed to probe just how secure patient data is Amendment 298 relates to information standards as set out in Clause 81, page 71, line 34, and would leave out proposed new section (6B). I am hoping the Minister will briefly set out the reasons for this proposed new section, how the power is intended to be used and what guarantees are in place in relation to patient confidentiality Amendment 299 concerns the importance of maintaining an accredited data access environment. I propose restricting “existing dissemination of information via access in an accredited data access environment” The Bill is drafted on the basis of a departmental “commitment that GP data will be used exclusively in a Trusted Research Environment” I do not think that is sufficient. It is important that the “new clause amends the dissemination powers of NHS Digital to reflect stated policy and the promises made both to patients and the profession”. The term “accredited data access environment” is used in my amendment, rather than “Trusted Research Environment” because while research information must be protected, so should information used for planning and managerial purposes Amendment 300 relates to shared care records and is aimed at probing “what progress has been made in relation to the introduction of shared care records”, the process by which patients can opt out of the record, and the rigour of that process. The potential of shared care records is, of course, a key part of the digital revolution. They allow staff involved in a patient’s care to access health and care records and to provide better joined-up care across different parts of the health and social care system. The problem is that consent for shared care records is basically a postcode lottery. In some places, the patient has not been told what has been created for them and if they do happen to find out, the way they can opt out varies. Some places have interpreted NHSX’s vague information governance guidance to mean a one-stop shop for opting out, whereas other places require patients to go to each different care provider, which is a very difficult and challenging thing to do Most people have no idea that the shared care records programme is happening. The application of the national data opt-out, introduced in 2018, is inconsistent in practice and does not prevent many other uses of patients’ data, in respect of which patients already have legal rights to consent. The debacle, twice now, of the Care.data saga shows the importance of getting this right, and of informing the public Amendment 304 concerns the soon-to-be-abolished duties of the Health and Social Care Information Centre, to be taken on by NHS England. The clause in question relates to data and the general duties of the information centre. My amendment would “require NHS England to balance out the needs of research and planning with patient” opt-out from data use “for purposes beyond direct care” My final amendment, 305, is in many ways the most important in this group. Very simply, I believe that patients should be able to see how the NHS uses data about them. My amendment aims to “allow any patient with a verified NHS login to see a personalised data usage report containing detail of every use of data about them for purposes beyond direct care, and showing how the duties” of the information centre have been implemented. The only way forward for wider use of NHS patients’ data involves the NHS providing more factual information to patients about those uses. I do not believe that the NHS understands this yet, but I am convinced that we need to make some move down this route if we are really to command the confidence we need to see in the future My other amendments, Amendments 302 and 303, really should have been grouped under the Healthwatch debate we had what seems like a very long time ago. The noble Lord, Lord Patel, and I are concerned to see that Healthwatch gets access to all relevant data in order to carry its responsibilities effectively. I hope the Minister will be able to agree to this. I beg to move.
My Lords—
Sorry, my Lords—I assumed that my noble friend Lady Brinton was going to speak next.
Thank you very much for reminding me. I am frightfully sorry. I invite the noble Baroness to make a speech now.
My Lords, I am grateful to the noble Lord, Lord Hunt, for outlining the amendments in this group, and look forward to my noble friend Lord Clement-Jones’s contribution shortly I want to speak particularly to Amendments 298, 299 and 300. Before I do that, I want to support my noble friend Lady Tyler of Enfield and her Amendment 307. I thank the Minister for the meeting last week on children’s issues, and just want to say that my noble friend’s proposal is a neat way of resolving what has been, up until now, a nightmare, through which children at risk of abuse or with other care needs have been missed by officers in different departments using different identifying numbers. A unique identifying number can close that lacuna The national plan for open government published a “reset” on health data, and it is worth repeating here its commitment 4, objective 1. Objective 1 is “accountability and transparency”: “Improving communication and engagement with the public about the access and transparency of health data, and decision-making relating to public health.” It then asks: “What is the problem that the commitment will address Civil society groups have raised concerns that health data collected and used by government is not clear, transparent or accountable enough. It leads to a failure of trust between citizens and government.” How right that is. I pick up the points made by the noble Lord, Lord Hunt, on shared care records. There is a definite need for a solution to the problem that he outlined. Opting out is patchy, complex and—worse—inconsistent Last year, on part 2 of care.data, the Government decided to change the way they held and used confidential patient data, and thought it appropriate, in the 21st century, just to announce the changes on the web. There was no direct contact with patients about the changes and, unlike the debacle the time before, there was not even a leaflet going to every household. There certainly was not a wider discussion with civil society. Worst of all, there was not even a discussion with GPs. Unsurprisingly, GPs and patients were horrified and the idea was ditched last summer. However, there is one serious long-lasting result. There is now real concern that this Government are trying to be cavalier with patient data, and the NHS does not understand the problems that it is has Data collection and sharing are important and have been instrumental in advancing medical capabilities and improving population health. Equally, individuals have the right to understand how and why their health data is being used, and to give permission on any confidential data. Frankly, the wealth of data held by the NHS should be used only for the benefit of the health service and for research; it should not be shared for marketing or insurance purposes, or as a benefit for a provider to make use of outside the original contract, as happened with the big data firm Palantir at the beginning of the pandemic. In February 2021, the tech justice firm Foxglove issued a law suit on behalf of openDemocracy over the NHS contract with Palantir, because of a failure to consider the impact of the deal on patients and the public without an impact assessment or consultation If the Government are to live up to their commitment, they need to set up a clear framework on health data with the public that sets out the fundamental principles and responsibilities for assessing whether a data-sharing partnership is in their interests and those of the NHS, while protecting privacy. That is why we need Amendment 298, because new subsection (6B) in Clause 81 appears to remove the explicit obligation that was in Section 250(6)(b) of the Health and Social Care Act 2012 that NHS England “must have regard to an information standard published under this section” and replaces it with a power for such obligations to be waived by regulations. That completely contradicts objective 1, “accountability and transparency”, as set out in the national plan, as I outlined at the start I will leave my noble friend Lord Clement-Jones to explain how the data can be protected in a much more effective way. Access to health data must be for public and patient benefit. These amendments set out to protect that patient data and put a responsibility on the Government to live up to what they claim they want to do in their national plan.
My Lords—
My Lords, I want to speak to this group of amendments—
My Lords, it might be appropriate for the mover of one of the amendments in the group to speak.
I was not being discourteous, but I thank the Minister. We just go along the line of amendments It is a pleasure to follow the noble Lord, Lord Hunt, and my noble friend Lady Brinton. Of course, we all recognise the benefits of using health data which arises in the course of treating patients in the NHS for research that will lead to new and improved treatments for disease and for the purposes of public health and health service planning. It has been a great benefit in helping to improve the treatment of Covid during the pandemic However, the track record of the department and the NHS in protecting patient data has not been a glorious one. We have heard a few examples. Let us go back to December 2019 and the discovery by Privacy International that the Department of Health and Social Care had agreed to give free access to NHS England health data to Amazon, allowing it to develop advertising and sell new products, applications, cloud-based services and/or distributed software My noble friend Lady Brinton talked about the successful case brought by openDemocracy and Foxglove against the department over a Covid-19 datastore deal with big data firm Palantir Technologies for failing to consider the impact of the deal on patients and the public by a consultation and performing a fresh data protection impact assessment on a new deal Then, of course, we had the situation last year, mentioned by the noble Lord, Lord Hunt, which has been described as “the biggest data grab in the history of the health service” of GP patient data. I pay tribute to the campaigners, including a group of Tower Hamlets GPs who refused to hand over patient data. Ministers first announced that implementation would be delayed until 1 September, and then in a letter to GPs in July last year put the whole scheme on hold, including data collection After this bungled approach—the noble Lord, Lord Hunt, used the word “debacle”, which is perhaps more apposite—more than 1 million people have now opted out of NHS data sharing. There is a deep worry here that the Government have learned nothing from the fate of the care.data project. The Government have now had to revise their approach, devise a simpler opt-out system and commit to the publication of a data impact assessment before data collection starts again. They have had to commit that access to GP data will be only via a trusted research environment and to a properly thought-through engagement and communications strategy Wade-Gery does acknowledge some of these concerns but if we are going to retain and build trust in the use of health data, we really need a clear governance framework. The Government must gain public trust through honesty, transparency and rigorous safeguards, and the individual must have the right to choose whether or not to share their data and understand how it will be used. I hope that NHSE—and, indeed, NHSD—will take on board the ICO’s recommendations in its audit report of NHS Test and Trace regarding governance and accountability and processor and third-party supplier relationship management, which looks at the policies and procedures that were introduced to keep data secure. There are some valuable lessons to be learned there As the noble Lord, Lord Hunt, has described, all health data must be held anonymously and accessed through an accredited data-access environment, designed to cover not only the promised trusted research environment but where data is used for planning purposes As to the detail of the amendments in this group, the noble Lord, Lord Hunt, has described them and the patient-centred intent behind them admirably. I will simply lay out the rationale for Amendment 305, tabled by me and supported, I am glad to say, by the noble Lord, Lord Hunt The data held by the NHS must be considered as a unique source of value held for national benefit. My noble friend Lady Brinton reinforced that. As it is, NHSE has refused to publish the list of projects and organisations to which it releases data. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator Having read speeches by Ministers trumpeting the UK’s “new, bold approach to international data transfers”, debated the UK approach to data sharing, particularly in the context of the passage of the Medicines and Medical Devices Bill and the Trade Bill, and seen the wording of new international trade agreements, such as that with Japan, I am not at all confident about the Government’s approach to this. Emphasis in coverage of the UK-Japan agreement was placed upon championing “the free flow of data” Health data in particular amounts to a significant national asset or resource with the potential to function as a dynamo in relation to research, innovation and the continued growth of the life sciences, health and care sectors It seems that the Government recognise this, but by the same token, we need a guarantee that our health data will be used in an ethical manner, assigned its true value and used for the benefit of UK healthcare. Any proceeds from data collaborations that the Government agree to, integral to any “replacement” or “new” trade deals, should be ring-fenced for investment in the health and care system with a sovereign health fund. It should have governance mechanisms, such as those set out by the Ada Lovelace Institute in Exploring Legal Mechanisms for Data Stewardship last year. Those are the right foundations for health data governance and that is why I have tabled Amendment 305A I am not greatly reassured by the recent announcement by the DCMS of the creation of the International Data Transfer Expert Council; it looks rather as though data protection will be low on its list of priorities.
My Lords, I rise to speak to Amendment 307 in my name. I am very grateful to the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, for adding their names to it. I am also grateful for the support already received from my noble friend Lady Brinton As I have argued in earlier debates on this Bill, it is a real problem that measures under Part 2 that aim to improve the sharing of information and data apply only to adults. This is despite the clear need to improve how children’s data is shared between health and social care and also between other agencies, including education and wider local services. The current absence of a single unique identifier makes identification of children who are in touch with multiple services very difficult and is a real barrier to joined-up support. My amendment seeks to address this glaring gap by requiring the Secretary of State to publish plans to use the NHS number as a single unique identifier for children Everyone in England and Wales is assigned a unique NHS number at birth or after the first time they interact with NHS services and that number is valid for life. Currently, the NHS number is used to store information on patients within healthcare records. However, we know that children and young people are frequently in contact with other agencies and services which are, more often than not, all using different identifiers. It is no wonder that too many children, including the most vulnerable, fall through the cracks, leading to the tragic and absolutely horrendous examples of extreme child cruelty and death that we have heard about recently The 2021 annual report on local children’s safeguarding practice reviews, previously known as serious case reviews, states: “Much has been written about the continuing barriers to sharing information between safeguarding partners and we found that those issues remain and were highlighted in almost half of all reviews”— I repeat: some 50% of the reviews Using the NHS number as a unique identifier would have the following benefits. It would reduce the risk of incorrect identification, improve multiagency working and improve care pathways. It would certainly ease the transition into adulthood, because the NHS number is for life. That NHS number stays with patients wherever they move within the country or between England and Wales. These are really important points A key finding of the House of Lords Public Services Committee report on child vulnerability was that “in most local areas, services working with children are unable to match unique pupil identifiers on the national pupil database with children’s NHS numbers. This limits the ability of early intervention services to reach the most vulnerable children” Simon Kenny, the NHS England national clinical director for children and young people, added to these calls, stating that we “definitely” need a unique identifier, and that there needs to be “a legal framework to enable it.” This Bill provides just that opportunity Both the Children’s Commissioners—Anne Longfield, the previous Children’s Commissioner, and Dame Rachel de Souza—have supported the call for a single unique identifier number for children. I spoke with Anne Longfield about this only yesterday, and she described this approach as a force for good I finish by referring to a briefing from the Royal College of Paediatrics and Child Health, for which I am very grateful. It strongly supports a single unique identifier for children using the NHS number and says that it would be utterly transformative in how services address the needs of children and young people, particularly the most vulnerable.
My Lords, I have added my name to Amendment 307, introduced so ably by the noble Baroness, Lady Tyler. I have raised this issue from time to time over the past decade or so, including in a spirited correspondence with the noble Earl, Lord Howe, when he was a Health Minister—which shows how long this issue has been kicked around Whitehall. The one number every child has is the NHS number, as the noble Baroness, Lady Tyler, mentioned, but to adopt it means education, social services and possibly police would have to accept it, and—terribly, of course—they would have to modify their IT systems. In short, what we have here is a good, old-fashioned, Whitehall bureaucratic struggle However, now the Children’s Commissioner Rachel de Souza has joined in rather powerfully because of all the children missing from schools, many more than before the pandemic. There has been a problem with children missing from schools from well before the pandemic—some going to illegal schools, others being home-schooled, often without much evidence of being taught curriculum subjects. There is now to be a home-schooling register. The Children’s Commissioner has made it crystal clear that she wants all children to have a unique identifying number across the NHS, school and social services. That is the only way these kinds of changes can be made to work. What we have is a situation now where children at risk are put at unnecessary risk because there is no unique identifier across the different services Personally, I would not bet on the Children’s Commissioner getting her well-deserved wish. Last week, the Department for Education trotted out its traditional line—that it will introduce the home-schooling register at the “earliest possible legislative opportunity.” But the department was totally silent on the unique identifier issue, which was so important to making this work We have had this issue sculling around Whitehall for many, many years. There is now a chance for a decisive Minister, like the noble Lord, Lord Kamall, to do something about it, bang a few bureaucratic heads together and put the NHS number to work protecting children at risk across a range of services. At the very least, it would be helpful if he could consider protecting children through the Government having a pilot scheme to take this idea forward.
My Lords, I apologise to the House and the noble Lord, Lord Clement-Jones, in particular; but having sat through nine days of this Committee, I was keen to get stuck in. I wanted to speak on group 10, particularly in support of the amendments of my noble friend Lord Hunt of Kings Heath The issue of data is clearly crucial. It is a shame, as was said on the previous group, that there is not a Bill on it in itself; it is worthy of that level of discussion. It is such a shame that we are discussing it now late at night under pressure of time.
My Lords, I would also like to speak quickly on these amendments. The last suite of amendments was about professionals having confidence in the health service. Patient data is the bedrock of individuals and citizens having confidence in their health service and how their data is used. I used the phrase “living in a parallel universe” in Committee a few days ago. Today, the Government published Joining up Care for People, Places and Populations, their proposals for health and social care integration. On reading chapter 4 on digital and data, it would appear that we are living in a parallel universe, because there are clear issues about what the Government say this integration will be. The document states: “This will ensure each ICS has a functional and single health care and adult social care record for each citizen by 2024” There is nothing about opt-out. This is a very clear view about what will happen. I will explain why it is a fantasy world in a minute I come back to Amendment 300 in the name of the noble Lord, Lord Hunt. There is a really important thing about the standard process for opt-out. In the area where I live, there is a DGH, a teaching hospital, a community care trust, a mental health trust, a maternity unit, a social care provider—it could be the council or from the voluntary and third sector—and my GP. If there is no standardised approach to opt-out, it will be needed in nine or 10 organisations. That is why we need a standard opt-out approach. It is absolutely wrong for the citizen to trail through nine different organisations, probably with nine different processes, if they wish to opt out, because not every citizen may wish to be part of a single health and adult social care record by 2024. I hope that most will, because they are important, but there is the issue of opt-out The document goes on to state how data will be used; it goes way beyond individual healthcare. It talks about population health platforms, and how data will be used and can be directed with a single standard from the centre. On information governance, paragraph 4.15 says that “This will make sure that when it is accessed or provided (for whatever purpose), it is in a standard form, both readable by and consistently meaningful to the user or recipient” It is good to have it in a standard form but “for whatever purpose” leads to a wider definition. The document also says that the standard will be laid out in the Bill but, as the noble Lord, Lord Hunt, said, that is at the direction of the Secretary of State through regulation, which is worrying. I ask the Minister, clearly, how this new document fits with the Bill we are discussing. Why, yet again, is a White Paper ahead of the legislation we are talking about today? There are things we could amend that would stop some of the things in this White Paper.
My Lords, I will respond to the debate, but my comments apply equally to the next group, so I hope that the noble Baroness, Lady McIntosh, will forgive me if I do not respond to that group separately. We have heard some very thoughtful and persuasive contributions to the debate on these amendments this evening, and once again my noble friend Lord Hunt and the noble Lord, Lord Clement-Jones, have very eloquently led the charge. I congratulate them on their contributions and the constructive detail of their proposals. Issues such as this require some specific proposals to have any meaning and their amendments very much do that: they spell out some solutions to the challenges we face. I also welcome the specific proposal from the noble Baroness, Lady Tyler, who made the case well for a single identifier for children The underlying issues around the use of information collected by the NHS are not new. As we know and have heard, the NHS is almost unique in being a single player in this field, at least for some purposes. It can and often does lead the world in its ability to collect and aggregate patient data to drive improvement and for other non-profit-making purposes Since the organisational changes of the 1990s, data collection and use have been well developed, and information and analysis—for example, from the Secondary Uses Service and some GP sources—have been extensively used by academics and researchers, as well as operational managers, to huge public benefit. But we have struggled, as we have heard. Despite hugely expensive meanders into, for example, the National Programme for IT, we are far from the goal of integrated data sharing, even in a single hospital, let alone all hospitals, let alone for all care. Clearly, technical, legal and cultural barriers need to be overcome before we can maximise the use of all the data collected As noble Lords have pointed out, the groundswell of opposition to data collection and the related concerns about who gets to use it and for what purposes runs along these barriers. We know that the NHS often has dismal communications—for example, around CareCo and the recent changes to the use of GP data, which we have heard about this evening Although we do not own our data, there is a very powerful set of legal protections over what data can be collected and stored about us and what it can be used for. If the public had absolute confidence in the systems and usage rules, there would be far fewer objections to their information being used to drive improved healthcare, innovative drugs research or better preventive or public health information programmes. But the reality is that concerns are widespread—about data breaches, about NHS data reaching people who do not need to see it and, more recently, as we have heard, about data being used by a number of unethical organisations and private companies to drive profitability rather than for the improvement of public health. Many patients would wish to be able to refuse to allow data collected about them to be used simply to drive a better marketing campaign for slimming or cosmetic aids but would allow their data to be aggregated so that better drugs could be developed and treatments improved to save lives; that would be an altogether different matter. Amendment 305A, in the name of my noble friend Lord Hunt, on establishing a sovereign health fund to invest in data-driven healthcare assets to generate long-term income for health and care makes that point, and I am sure it would have public support The key principle should be that all data collected for the purposes of care should be held and controlled by the public sector and its use protected. It should be subject to ethical guidelines and independently verified by an expert oversight group. These amendments would strengthen these rights in those regards Anyone who visited a hospital 20 years ago and walked around would probably have come across a trolley stacked with files that could easily have been removed or read. However, IT and the ability to aggregate vast amounts of data, allowing serious data breaches, is a modern and valid concern. My noble friend Lord Davies illustrated this with specific concerns about smart programmes which can identify individual people from a very small amount of data about their lives So we do feel that these amendments would be a very helpful way to address the underlying and fundamental problems of the lack of patient and public confidence in how their data is going to be used and shared. I hope the Minister, the noble Baroness—no, it is the noble Lord—agrees that these proposals offer a helpful way forward in addressing these concerns. While we will not press the amendments to a vote this evening, I hope he is able to offer some reassurance that some of these practical proposals will be taken forward by the Government.
Let me assure the noble Baroness that I was not trying to opt out of my duty to respond I thank all noble Lords for their contributions to this important debate. I reassure many noble Lords across the House that when I first became a Minister, I had many of these questions myself—and I continue to have them, if I am perfectly honest I will turn first to the amendments before deciding how to go forward, as it were. In response to Amendment 298, Clause 81 explicitly mentions NHS England as a body to which mandatory information standards can be applied. As set out in this clause, the exact procedure for publishing information standards, as well as any procedure for granting waivers in respect of compliance with these standards, will be set out in regulations subject to parliamentary scrutiny under the affirmative procedure. The regulations may set out limits on the circumstances in which a waiver may be granted. For example, a temporary waiver might be considered where an organisation does not have funding in place to implement the required changes The noble Lord, Lord Hunt, also referred to accredited data access environments and rightly acknowledges that their function is not just to support research but for analysis to support service planning, as well as other essential activity. I believe that we are fulfilling our promises to the profession and the public at the moment, but clearly more could be done. We have made clear that data collection for General Practice Data for Planning and Research will now begin only when: first, we have in place the ability to delete data if patients choose to opt out of sharing their GP data with NHS Digital; secondly, a trusted research environment is available, where approved researchers can work securely on deidentified patient data; and, lastly, a campaign of engagement and communication has increased public awareness, explaining how data is used and patient choices In addition, the Government have committed to developing, this year, rules for such data environments in the NHS, including technical specifications and a framework for accreditation. However, while we expect secure data environments to be appropriate for the vast majority of uses, there are likely to be exceptions. For example, where patient consent has been given for data to be made available to an external researcher or organisation, or where there is a court order requiring data, it may have to leave the secure data environment. I assure the noble Lord that we will continue to examine how secure data environments operate and are governed, to make sure that they are fit for the future.
I am sorry to interrupt the Minister at this time of night, but I think he has no idea how many Ministers have stood in this place over the last 10 to 15 years making very similar speeches to this. We now have “deep dives”, but the idea of Whitehall co-operating on this issue is always dead in the water after these deep dives, if I may mix my metaphors. What we really need is at least an assurance that some kind of pilot scheme will actually emerge from this deep diving and be put in place so that something actually happens, with all the agencies co-operating.
I thank the noble Lord, first for his earlier confidence in my abilities and now for questioning my abilities, as it were, and rightly so. I am very interested in this, and noble Lords will remember that, in the meeting, I discussed what I saw as technical solutions to this. If there are different primary keys, it does not take a complicated bit of code to give equivalence or, in fact, restricted views, as it were, as appropriate. However, once again, those views would have to be agreed across government: while it might seem appropriate for the Department of Health number or the NHS number to be used, that could give access that is not considered appropriate, and we have to get the right balance. I ask the noble Lord, Lord Warner, to revert back to his earlier confidence in my abilities to do something —assuming I am here for some time In the coming months, the Department for Education will be providing an update to the existing information-sharing guidance. We believe that provides a real opportunity. One thing I have been quite clear about—for example, in the life sciences vision—is that I want to work with my counterparts and have been working with my counterparts in other departments; in BEIS, in DIT but also with the adviser in No. 10. I fully recognise the Committee’s interest in promoting data protection, ensuring that patients’ data is used appropriately. We have all been on a learning curve over the years as people share their data on such things as Facebook and now realise what happens to that data, how it is used and sold. I alhso refer to the ownership of data: at the end of the day, the data has to be the patient’s data. They have to be quite clear about that ownership and what happens to it All processing and sharing of information under Clauses 81 to 87 will meet the requirements of data protection law, including the UK GDPR. An individual’s personal information will be shared only in specific circumstances: where the individual consents to the use of the data, where there is a legal requirement to share or where sharing such data is necessary. I recognise as well that noble Lords, if we get through this, will be having a meeting tomorrow on confidential data and I hope that we can have some more, deeper conversations, not only tomorrow but in future. I have committed previously to meetings: there is a particular issue with one of the meetings and I will explain that to the noble Lords I spoke to previously about it, but I hope that for now, noble Lords will have some reassurance, although perhaps not complete reassurance, and will feel able to withdraw their amendments at this stage.
My Lords, I am very grateful to the Minister. I am conscious of what my noble friend Lord Davies said about the time we have to debate these complex and important matters. Clearly, we would like to reflect on the Minister’s reply, which was constructive and helpful, although I cannot help recalling meetings that I held as a DoH Minister with the Department for Education Ministers in about 2002, where we were discussing this very issue. My noble friend Lady Hughes—Beverley Hughes—was the Education Minister and, alas, nearly 20 years later, here we are still talking about these issues, which is why we are a little pessimistic about the dive that the noble Lord is about to make In the end, this is all about public confidence and the balance between the needs of our health and care system and the benefit that accrues from the exchange of, and access to, information. I am alarmed by the figure for opt-outs—a million—and it puts at risk the integrity of having the shared information system. That is a reflection of the challenge that the NHS in particular faces and I still doubt whether it really recognises just what it needs to do. Making opt-out easier is one way in which we build confidence in the system, and it might mean that fewer people opt out in the future. The current system of making it as hard as possible for people to opt out is not the way to grow confidence. That is probably the most important point that I want to make Having said that, I thank the Minister for his constructive response, and we look forward to these further meetings. I beg leave to withdraw the amendment.
My Lords, I support and welcome Clause 87 on medicine information systems. My amendments would simply add to the regulations on information systems. I want to explain why I want to do so and set out how Amendments 306A to 306C would require the linking of information systems to ensure engagement with equivalent international bodies and enable better sharing of data for post-market surveillance, and Amendment 306D would require the linking of information systems relating to medical devices to ensure engagement with equivalent international bodies and enable better sharing of data for post-market surveillance of devices. They are intended primarily as probing amendments to enable me to thank and congratulate my honourable friend Anne Marie Morris in the other place, who brought forward these amendments, and to explain why they are needed Registries for both medicines and devices are a critical tool in effective commissioning of medicines and in post-market surveillance, which the report by my noble friend Lady Cumberlege rightly noted is essential for patient safety. Although clinical trials can provide some evidence, this needs to be continually updated to ensure that the knowledge is current and that any adverse reactions can be monitored.
My Lords, I rise very briefly to speak to this amendment. I have considerable doubts about it. In relation to patient data, it looks like a possible thin end of a wedge—in fact, it might even be the thick end of a wedge. I take this opportunity to come back to the Minister to add a query about the data governance regime which he has described this evening and into which we dipped our toe with the last group of amendments. My noble friend anticipated me in discussing the White Paper, which, in turn, follows from the Data Saves Lives draft strategy. I hope we will have the opportunity to meet the Minister to discuss this further because it is a very complex area I want to add to that conversation the fact that we variously have IGARD, CAG and the National Data Guardian for Health and Care—as well as NHS Digital, which we hope will remain separate, but we will come to that shortly. We have all these different bodies, but we need a simple regime which helps us understand, for instance, whether the Minister will say, “Yes, it’s already happening”, to the noble Baroness, Lady McIntosh, or, “No, it’s not going to happen.” I could not tell you the answer to that question in my current state of knowledge about the ability to transfer information across the health service and internationally There is a balance to be struck between the established protections and new provisions which might expedite the development of access to new and improved treatments and technologies—but it must be done in a safe way. I hope that, between Committee and Report, the Minister will take the opportunity to ensure that we have all the information we need on plans to perform a so-called reset of or new direction for—or however he might like to describe it—the NHS’s use of our health data.
I am grateful to the noble Baroness, Lady McIntosh, for bringing this discussion before the Committee. I also thank the noble Lord, Lord Clement-Jones, for his contribution. The information collected by the future medicine information systems has the potential to be used appropriately to support relevant research and improve the way in which we monitor medicines across the UK. However, once again, referring to the previous debate, we must be quite clear about whose data that is and the right to opt out Exchanging information with both national and international institutions is already integral to the MHRA’s post-market surveillance activities. Appropriate sharing of data from medicine information systems and medicine registries could also help support wider research to directly inform regulatory decision-making and to further support patient safety. Once again, we must respect patients’ concerns and their right to opt out The clause already provides the necessary power, by inserting new subsection (7A)(2)(c), enabling regulations to be made about the use and disclosure of information held within medicine information systems In regard to the noble Baroness’s admirable desire to ensure international co-operation with other bodies for post-market surveillance, medicines information systems will be established to support the MHRA developing medicine registries. As the regulatory authority, it is the MHRA’s international collaboration, rather than the information centres’, that will be key to supporting post-market surveillance. To ensure that this can continue, there are already specific powers in the Medicines and Medical Devices Act which enable the Secretary of State, and by extension the MHRA, to appropriately share information with international partners. Once again, going back to a previous debate, it is about what is an appropriate sharing of data As with medicines information systems, we already have sufficient legal powers to appropriately share. On the second element of this amendment, the existing provisions in Section 19, specifically Section 19(2)(c), enable regulations to address the use and disclosure of information held within medical devices information systems, providing an ability to appropriately share information within a future system. There will need to be careful consideration and consultation on the sharing and use of information, as we have previously said. However, there is a beneficial impact that the system could have in research and post-market surveillance In response to the specific question, I recognise the desire to see a system set up under the regulation-making powers in place, but given the importance of this matter, it is crucial—I hope that the noble Baroness reflects on the previous debate—that we take the time to get this right. Any regulations made under Section 19 and the wider system will need to be informed by extensive engagement and consultation, working closely with our partners in the devolved Administrations, so that they can deliver their full potential for patients and clinicians across the UK, taking account of the very real concerns raised about patient data. Once again, we are trying to get that balance right: better healthcare and better research feeding into health, but at the same time patients having the right to opt out NHS Digital is well placed to deliver and operate the medical devices information system. Alongside key partners, such as the devolved Administrations, we will consider how we can establish this system in a controlled, staged manner that builds on the confidence and momentum behind this issue Finally, I will be moving Amendment 306AA in my name. The amendment is supported by the Scottish Government; it is simply a clarification in wording. It makes clear that any powers or duties conferred on Scottish Ministers in relation to their role in collecting information for medicines information systems can be treated in the same way as other NHS powers or duties in Scotland and be delegated to health boards in Scotland. It is my sincere intent not only to respect the devolved settlement but to create the best possible system, one that will work UK-wide. This amendment supports that aim. It is for that reason that I ask noble Lords to support this amendment and invite my noble friend to withdraw hers.
My Lords, I am grateful to my noble friend the Minister and the noble Lord, Lord Clement-Jones, for their contributions. I quite understand that my noble friend feels that there has to be a proper consultation, mindful of the sensitivity of patient data. I remember that being discussed during the passage of the Medicines and Medical Devices Bill in this place. It would be helpful to have an idea of what the timetable is for the consultation period and the introduction of the regulations. I do not know if my noble friend is able to put a timetable on that. Perhaps he could do that when we meet at the round table; it would be extremely helpful. I am grateful for the reassurance he has given and for the opportunity to have aired the issues this evening. At this stage, I beg leave to withdraw the amendment.
My Lords, it is regrettable that we are dealing with the very important Clauses 88 and 89 at this time of night—and obviously it is regrettable that the House has to have me as a poor substitute for the noble Lord, Lord Hunt These amendments relate to the abolition of the Health and Social Care Information Centre and the implications for the integrity of patient data. Clauses 88 and 89 give the Secretary of State powers through regulations to transfer a function from one relevant body to another, and the relevant bodies are defined as Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. Other than NHS England, each of those bodies can be abolished under the clause as the result of a transfer of functions Amendment 227 to Clause 88 refers to the abolition of the Health and Social Care Information Centre. The Government have announced that they will be using the powers in that clause to merge NHS Digital to form part of the new transformation directorate within NHSE, and of course we have seen that NHSX has now been abolished and the relevant personnel have moved into the transformation directorate. The Health and Social Care Information Centre is an executive non-departmental public body created by statute, usually known by the term “NHS Digital”. This amendment, which would prevent that from happening to the HSCIC, is designed to ensure that NHS Digital continues as an entity to safeguard patient data. The merger of NHS Digital with NHSE risks losing the skills and experience that currently sit within NHS Digital. I have mentioned that NHSX has ceased to exist There are two risks for patients. One is that important knowledge and skills will be lost as talented people leave the organisation and time is devoted to the nuts and bolts of making the organisation function rather than on achieving its aims. The other is that the new merged organisation will just be too big and unwieldy to respond in an agile way to major challenges such as workforce planning and digital innovation. If NHSE leaders understand how important these challenges are then they will be able to prioritise them and make them part of the organisation’s core function I turn to the functions of the statutory safe havens in relation to Clause 89. Part 9 in Chapter 2 of the Health and Social Care Act 2012 lays out the functions and obligations of what is described as the statutory safe haven for patient data from across the health and social care system required for the production of national statistics and for commissioning, regulatory and research purposes, in addition to supporting patient care. Amendment 228 seeks to keep these statutory protections in place and ensure that NHS England does not take on that responsibility, because of a potential conflict of interest in its role The bottom line is that we need to retain NHS Digital’s statutory safe haven functions separate from NHS England. As the BMA has said, it is of the utmost importance to retain a quasi-autonomous body for the purposes of collecting, storing and distributing sensitive patient data—something that would be lost under a merger of NHSD and NHSE There is one other major advantage of keeping NHS Digital as the digital safe haven. The statutory safe haven’s legal name is the Health and Social Care Information Centre, so there is some obligation to social care. NHSD has always given some thought to integration, even when there was very little on the social care side to integrate with, and little interest from NHSE in doing that work itself. If it all gets merged into NHSE then how will the obligation to collect social care data continue to exist, since NHSE’s responsibility is to the NHS? If this transfer of functions takes place, who will be responsible for the national collection of social care data? Each bit of the social care world will see NHSE as a different entity from NHS Digital. What are the Government’s joining-up plans in respect of the future governance of this kind of data? I beg to move.
My Lords, I shall speak to my Amendments 229 and 230. I thank the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley, for adding their names to them. The House of Lords Constitution Committee report on the Bill raises serious concerns about the range of Secretary of State powers in the Bill and concludes that these new powers, coupled with new powers for the Secretary of State of oversight, delegation and transfer of function, “could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to function in a manner that can respond effectively to local needs. It also risks undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.” That is a claim that we must take seriously All the amendments in the group are important but, as has already been said, the hour is late and we need to rush so we cannot discuss them fully As the Bill is drafted, the Secretary of State would have the power to confer, abolish or change the function of a list of bodies that includes NHS England, Health Education England and the Human Fertilisation and Embryology Authority, to name but a few. One safeguard included in the Bill in relation to NHS England is that the Secretary of State would stop short of changes that would make NHS England redundant—but “redundant” is not defined. However, nothing on the face of the Bill sets out how high or low that bar would be set I recognise the logic of the Secretary of State having powers to confer responsibilities on arm’s-length bodies via secondary legislation. However, these new powers are far more extensive than that, and there is a real danger that their application could threaten the operational independence of key parts of the NHS. The Secretary of State should not have the power to abolish a body such as the Human Fertilisation and Embryology Authority, or to transfer the majority of its powers. Health Education England and the Health Research Authority were established through the Care Act 2014. If the Secretary of State believes that any of these bodies should be abolished or have functions removed, Parliament should have the opportunity to debate and understand why he desires to take that action, hence my amendment to reduce the scope of these powers and remove the Secretary of State’s powers.
My Lords, after consultation with the clerks and for the convenience of the Committee, I have moved my Amendment 318 into this group. Before I speak to it, I say that, as a person who has culled a few quangos in his time, I think that the amendments in the names of the noble Lords, Lord Hunt, Lord Clement-Jones and Lord Patel, are important. Even I never had the nerve to actually abolish bodies set up by Parliament just because I thought that it would be a good idea. That seems to be the approach taken in some parts of this legislation. It is worth bearing in mind a point made already: that attracting skilled professional staff to many of these bodies would be much more difficult if they were in an omnibus body such as NHS England. Many high-quality professionals would not want to work in that environment The purpose of Amendment 318 is simple: to delay implementation of Parts 1 and 3 of the Bill until the Government have reduced substantially the huge backlog of patients awaiting NHS diagnosis and treatment. The amendment is based on the proposition that, however meritorious the NHS reorganisation that the Government propose is, implementing it when they have told the NHS that their top priority is reducing the backlog seems a considerable risk. As a former Health Minister, I regard this as highly ill-advised and not in the best interests of patients. Let me briefly set out the arguments In its report of 1 December, the NAO made clear the unprecedented scale of the backlog that the Government have finally faced up to. It has taken over two months for the Government to come to Parliament, which they did yesterday, to acknowledge the true scale of the backlog. Some 6 million patients are now known to be on the NHS waiting list; 300,000 of those have waited for over a year, and 18,000 for over two years. But the NHS data tells only part of the backlog story, as the NAO pointed out over two months ago. We know that 10 million patients have not come forward during the pandemic. The Health Secretary has acknowledged that it is unclear “whether it will be 30% or 80%” of this 10 million who come forward. We do not know how many of these people will request treatment. The Health Secretary said: “Even if half of these people come forward, this is going to place huge demand on the NHS”.— [Official Report, 8/2/22; col. 805.] The Institute for Fiscal Studies forecast “a likely peak of between 8 and 11 million” people on NHS waiting lists What will the new NHS plan do to deal with this? It says that the waiting lists should start to fall “around March 2024”. But that assurance is without knowing the true size of the waiting list, as the Secretary of State acknowledges. The Treasury—the good guys in all of this—wanted more ambitious NHS targets. Instead, the NHS has been allowed to retain a March 2025 deadline for dealing with the 300,000 patients waiting more than a year for treatment. This is the situation in which the Government are trying to introduce a major reorganisation of the NHS, and that is why I have put forward this amendment, which would defer implementation of Parts 1 to 3 of the Bill The Government, approved by Parliament, will be asking NHS staff to be pre-occupied with implementing the changes made in this Bill, while often changing jobs as new integrated care bodies and partnerships are established and made to work. The Government are asking them to do this at the same time as they are working to reduce this huge, unprecedented backlog of patients needing diagnosis and treatment When he took office, the current Health Secretary’s instinct was to scrap the Bill, and when it began its passage through Parliament the actual scale of the backlog was not known. The Health Secretary needs to return to his initial instinct, which was very sound, and postpone its passage. If he does not, he will be putting many NHS patients at unnecessary risk. I suspect the Minister will tell us that in many areas the boards and partnerships are ready to go. If he does, I would be interested to have a list of those areas, to save a parliamentary Question. If that is the Government’s position, I would be interested to know why the NHS has been allowed to do this before the Bill has been approved by Parliament and the expenditure authorised. Despite the dubious legality of implementing before Royal Assent the changes made in this Bill, Amendment 318 avoids unscrambling what I might call illicit reorganisations It is the job of this House to get the Commons to think again. That is what this amendment does. It does not wreck the Bill; it simply defers implementation until the NHS has the huge backlog of treatment under better control. I beg to move.
My Lords, I added my name to Amendments 229 and 230 from the noble Lord, Lord Patel, to limit the Secretary of State’s powers in Part 3 of the Bill to transfer or delegate functions. Part 3 as it stands would give the Secretary of State a wide range of powers to abolish or modify the functions of a body without primary legislation. That goes to the heart of the matter. I share the concerns of the Constitution Committee. In the absence of proper parliamentary scrutiny, it is necessary to narrow the scope of these powers. To this end, the two amendments would remove from scope the power to abolish a function of the body, the power to change the purpose or objective of a body and the power to change the conditions under which the body works The amendments go to the heart of what the Government are trying to do in Part 3. We will come to the wholesale removal of Part 3 in the next group but, for now, will the Minister explain why these powers are needed, why they need to be so broad in scope and why the Government are so frightened of Parliament that they do not want to give Peers and MPs an opportunity to make a judgment on their justification? It would be helpful if the Minister could say how it is anticipated these powers will be used. Give us some examples, please I also support Amendment 318 in the name of the noble Lord, Lord Warner. The Minister may recall that at Second Reading and at the beginning of Committee stage, five exhausting weeks ago, I expressed similar concerns about the ability of the NHS to cope with this wholesale reorganisation at this time. The NHS has been in crisis for the last two years and the noble Lord, Lord Warner, has laid out clearly the extent of the backlog—as far as any of us know about it. There is a big difference between 30% and 80%. The Secretary of State himself makes it clear that he knows that the backlog will go up before it comes down again. We have what we call “the dark backlog”; we do not know how many people are going to come forward There is also the issue of the pre-emption of Parliament, as the noble Lord, Lord Warner, suggested. A lot of these bodies have been set up and we do not know whether Treasury rules have been broken by the expenditure of money in their setting up. Perhaps questions will be asked about that. I hope that the Minister will bear in mind what the noble Lord, Lord Warner, said in conclusion. The amendment is not intended to destroy the Bill, but to delay it to a point when the NHS can cope with it, without damage to patients.
My Lords, this is a mixed group of amendments and it has been extremely helpful to hear from noble Lords about the various aspects. I thank the noble Lord, Lord Clement-Jones, for introducing the group. Amendment 227 is about the powers to merge NHS Digital and NHSX into the new transformation directorate of NHS England. It would also allow the health and social care information centre to be swept up in the changes. This amounts to the abolition of the health and social care information centre and I look forward to hearing from the Minister about the implications for the integrity of patient data and what safeguards might be applied I draw the Minister’s attention to the article in the Health Service Journal on 8 February entitled “Revealed: How NHSE’s New Transformation Directorate Will Operate”. It sets out how this new transformation directorate will function and how all the appointments have already been made despite Parliament having not yet completed its deliberations. It would be helpful to hear from the Minister on this point Amendment 228 modifies the power to transfer functions. It has already been argued that this power function should not be given so lightly. The amendment emphasises that point In the previous debate, we heard some excellent contributions about patient data and the need for safeguards but also about the need for public confidence in the systems, process and governance. It is far from clear that the changes to allow the Secretary of State to take powers in this complex and contested territory are at all wise I thank the noble Lord, Lord Patel, for Amendments 229 and 230, which seek to limit the scope of the powers of the Secretary of State. Since we continue to oppose these additional powers of the Secretary of State altogether, we certainly acknowledge the need to limit that scope, as defined within the amendments Amendment 318 is in the name of the noble Lord, Lord Warner, who has set out the scale and the reality of the challenge of waiting lists and how that affects the wisdom or otherwise of the Bill and its timing. I emphasise that we are now talking about reducing numbers on a waiting list to below 1 million, but that is not only due to Covid. The NHS went into the pandemic crisis of waiting lists with a pre-existing crisis of its own. It is important that the Minister addresses the fact that this has been going on for some time. Just how long it will really take for the recent recovery plan to reduce the length of the waiting lists for hospital treatment below 1 million is far from clear. As we have heard, this amendment rightly highlights the points about the pre-emption of Parliament and the fact, which we have raised on several occasions, in the Chamber and in meetings, that appointments have already been made ahead of Parliament coming to a conclusion. That remains a matter of concern, as the Minister is well aware The remaining amendments in this miscellaneous group are those from the Government, which are consequential on obligations and relations with the devolved Administrations. We were advised by the Minister that these would be forthcoming, somewhat late on in consideration of the Bill. We thank the Minister for advising us, but we cannot support these amendments as our position relates to the original clauses to which they relate, as they are not ones with which we find favour. I hope that the Minister will reflect and respond on the points raised in this debate.
My Lords, as many other noble Lords have said, this group contains a range of amendments in relation to the power to transfer the functions of the arm’s-length bodies. Because some of the bodies within the scope of this power perform functions in areas of devolved competence, Clauses 88 to 94 engage the legislative consent process. To ensure that we can proceed on a UK-wide basis, the Government have agreed to make a number of amendments, while recognising the comments of the noble Baroness about support for those amendments. Following the recent conclusion of our negotiations with the devolved Governments, I am pleased that they have now recommended to their respective legislatures that legislative consent Motions be granted provided that these amendments are accepted Amendments 231A and 231B will remove devolved Ministers, the Northern Ireland Department of Health and Welsh NHS trusts from the list of appropriate persons to whom property rights and liabilities can be transferred through a transfer scheme, following a transfer of functions. Following a request by the devolved Governments, we determined that it would not be necessary for such a transfer to those entities to occur Proposed Amendment 231C creates a requirement for the Government to obtain the consent of the devolved Governments for any transfer of functions that are within the competence of their legislatures or that modify functions exercised by Welsh Ministers, Scottish Ministers or a Northern Ireland department. While the majority of the functions within the scope of the power relate to reserved matters or apply in England only, certain bodies have functions that meet the criteria laid out above. This requirement to obtain the consent of devolved Ministers replaces the requirement to consult them. The Secretary of State will still be required to consult any body to which the regulations relate and can consult such other bodies as the Secretary of State deems appropriate. A memorandum of understanding is currently being finalised that sets out how the devolved Governments will be engaged from an early stage of policy formulation Amendments 231D to 231G are consequential on the changes to Clause 94 made by Amendment 231C. We have also agreed with the Welsh Government to make Amendment 227A, which clarifies that the powers in Part 3 of the Bill apply only in relation to England-only and cross-border special health Authorities and not Wales-only special health authorities. It has never been the Government’s intention for references in Part 3 of the Bill to special health authorities to include Wales-only ones. This amendment simply makes that explicitly clear I would also like to provide some reassurance to the devolved Governments about Clause 91(6), which sets out that the consequential provision that may be made when making regulations to transfer functions includes consequential changes to devolved legislation. The reason this is necessary is that there are references to the relevant arm’s-length bodies in devolved legislation that may need to be amended to reflect a transfer of functions or the renaming of a body. Amendments to devolved legislation under this power may be made only if they genuinely flow from a transfer of functions. This is not a broad power to make sweeping substantive changes to devolved legislation. In a similar vein, we want to provide assurance to the devolved Governments about Clause 149, which is a wider power to enable the UK Government to make consequential amendments that may be necessary following the passage of the Bill. This type of power is quite common in a Bill as large as the Health and Care Bill and there are many examples of similar powers in legislation already on the statute book. Amendments, including amendments to devolved legislation, under this power may be made only if they are genuinely consequential upon provisions within the Bill. Like Clause 91(6), this is not a broad power to make sweeping substantive changes to devolved legislation I now turn to Amendments 229 and 230 relating to Clause 91 that have been spoken to by the noble Lord, Lord Patel. Clause 91 does not create powers in and of itself. Rather, it sets out certain types of provision that may be made when the Secretary of State uses the power to make consequential provision where making regulations under the Bill—Clause 150—alongside the power to make regulations under Clauses 89 or 90 transferring or delegating functions. Anything done under the powers to which this clause relates, therefore, would need to be genuinely consequential, supplementary or incidental to a transfer or delegation of functions It is impossible to predict every consequential provision that may arise from a transfer of powers and functions. Therefore, it is appropriate that the list in Clause 91(1) should be non-exhaustive, and include provision for abolishing and changing functions, as well as conferring them. Any changes would be made under the affirmative procedure, allowing Parliament to scrutinise them, and I hope the noble Lord will feel that he does not need to press his amendments I turn now to Amendment 227 and 228, tabled by the noble Lord, Lord Hunt, and spoken to by the noble Lord, Lord Clement-Jones. The merger of NHS Digital and NHS England was a recommendation of the Wade-Gery review. The aim is to give NHS England overall accountability for leading the transformation of digital services in the NHS, which includes how we use data effectively and securely Years ago, when I did my master’s in information systems management, one of the things we found out about companies or push-back companies was that digital and technology should not be separate or a bolt-on. They should be an integral part of the strategy and NHS Transformation tells me how integral technology is to transformation. If you consider it a bolt-on, it will not be integral to the overall strategy. To quote from Putting Data, Digital and Tech at the Heart of Transforming the NHS: “data and analytics must become a core capability for NHSEI and the wider healthcare system going forward … Currently, this capability is split across NHSEI, NHSX and NHSD and, as a result, is being underutilised with duplicated activities, investments and capabilities.” The report makes clear the benefits of these proposed changes There is also no question of diluting the current patient data protections. The planned merger will largely be achieved through a transfer of functions, staff, services and platforms from NHS Digital to NHS England. The Government will continue to hold NHS England to account for delivery of these functions, just as it currently holds NHS Digital to account. None of the changes we are making will remove the protections in respect of patient data I thank the noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, for for moving their amendment into this group. Placing these kinds of constraints on the Government’s power to commence legislation would be both unusual and counterproductive; we believe that our elective recovery delivery plan, which was announced yesterday, is better suited to solving the issues in this debate. We have committed an additional £2 billion this year, plus a further £8 billion, and laid out how we expect to tackle the backlog. As the noble Baroness, Lady Merron, rightly said, there was a backlog before, and we would have been tackling it earlier had it not been for Covid. We intend to deliver on our proposals, and those in the 2019 NHS Long Term Plan.
My Lords, the Minister will probably get the “Just a Minute” prize for the evening. I will not try to reply to all the amendments, purely those tabled by the noble Lord, Lord Hunt, to which I have spoken. However, if ever I saw candidates for return on Report, they are those in this part of the Bill, in all respects that have been spoken to this evening. This is an extremely unsatisfactory part of the Bill, which gives far too much power to the Secretary of State However, I thank the Minister for his response. He looked rather baffled when I spoke to Amendments 227 and 228—perhaps because Dr Wade-Gery, who is its chair, unaccountably suggested that she did not really understand the dual function of NHS Digital. It is rather extraordinary. It is a dual function; neither I nor the noble Lord, Lord Hunt, have any quarrel with the transfer of digital capabilities to NHS England—it is the safe haven aspects, a really important second function of NHS Digital, that we object to. In moving all the data across to NHS England, it will no longer have the independence and objectivity of NHS Digital. It is a really backwards step in data governance We can have the digital transformation and data-analytical capabilities within NHS England, but I fear we will not have the same safeguarding of the actual data that we have at the moment. Even that is not satisfactory, as the Minister has heard this evening. That said, we will no doubt return to that in conversation and I beg leave to withdraw Amendment 227.
My Lords, Part 3 of the Bill has seven clauses: Clauses 88 to 94. This group of amendments seeks to oppose each of them and has been tabled in the name of my noble friend Lady Thornton. The title of Part 3 is: “Secretary of State’s Powers to Transfer or Delegate Functions” It puts into legislation what is proposed in the Integration and Innovation White Paper, which was justified by reference to the need to be able to respond rapidly and —once again, we see this word—flexibly It is a fair observation that the existence of multiple arm’s-length bodies is a side-effect of the more modern NHS, as we see more distancing from government. Some of them have worked better than others and, of course, some are listed specifically in the Bill. So the question for the Minister is: why does the Secretary of State need the broad powers outlined in the Bill to intervene in the running of these arm’s-length bodies, and why now? In the White Paper, in Committee in the other place and since, nothing has come forward to explain why giving even more powers in this way can be justified, so it would be most helpful if the Minister could illustrate what would happen were these powers not granted to the Secretary of State Of course, there is a danger here. If the arm’s-length bodies know that they are subject to these powers, they will inevitably become a lot less arm’s-length and less able to fulfil the functions for which they have been established. I venture to suggest that this is about consolidation of power at the top while pushing accountability down or further away, and I would welcome the Minister’s observations on this Throughout the deliberations of this Committee and the Committee in the other place, numerous concerns have been expressed about giving greater powers to the Secretary of State. Unless a compelling case is made and appropriate safeguards built in, I believe it is right that we oppose these clauses standing part of the Bill. I beg to move.
My Lords, the 2012 Act removed certain powers from the Secretary of State, and Jeremy Hunt, the former and longest-serving Secretary of State, says that he never felt the lack of them. He had all the levers he needed to carry out his role of ensuring that the mandate and the five-year forward view were carried out and responsible to Parliament. However, Part 3 of the Bill puts a whole lot back—and more. These powers appear all over the Bill but particularly in Part 3, and we have spent the last five weeks pushing back against most of them There is a real danger that, if the Secretary of State were to use these powers, it could threaten the stability, proper management and operational independence of key parts of the NHS. The Constitution Committee raised serious concerns about the range of Secretary of State powers and concluded that the new powers “could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to … respond effectively to local needs.” I make no apology for the fact that I have quoted this section of the committee’s report before. It applies to so much of the “We know best” power grab that it bears repeating If the Minister wishes to abolish, change or transfer functions between arm’s-length bodies to this extent, it should be scrutinised by Parliament. Should it be necessary and appropriate in the future to make these changes, the Secretary of State should find another piece of primary legislation in which to do it. But to take these overreaching powers with no indication of how they will be used—or why—is going too far.
I thank both noble Baronesses for bringing this debate before the Committee. The proposal is to remove Part 3 of the Bill entirely. I understand that the noble Baronesses are principally concerned to prevent Health Education England, NHS Digital, the Health Research Authority and the Human Fertilisation and Embryology Authority from being abolished as a consequence of this power I clearly understand the concerns in this debate, but I stress that this is not a power to take away services currently being performed by arm’s-length bodies. The power is to enable the transfer of functions between arm’s-length bodies, and the delegation of the Secretary of State’s functions to arm’s-length bodies, to improve consistency and coherence in the arm’s-length body landscape. There is no free-standing power simply to abolish an arm’s-length body contained in this clause, and it is not the Government’s primary intention to use this power to abolish bodies. The only circumstances where a body may be abolished under this power is where it is, as the result of transfers of its functions to other bodies, effectively rendered redundant. To not have the power to abolish such bodies in these circumstances would effectively leave shell arm’s-length bodies with no significant functions, which would weaken the efficiencies we are seeking to create I reassure the noble Baronesses that all proposals will be considered through a full and extensive engagement and consultation process. Regulations providing for transfers under this power will be subject to the affirmative procedure. This ensures that Parliament can scrutinise the use of this power, including any necessary amendments made to primary legislation. This would follow on from a consultation with the relevant parties The Secretary of State must, at a minimum, consult the arm’s-length bodies and devolved Governments to which the transfer relates. Additional stakeholders whom it may be appropriate to consult will vary depending on the nature of the transfer of functions contemplated. The Bill therefore provides that such other persons as the Secretary of State considers appropriate should also be consulted, which is in line with the department’s and the Government’s commitment to engaging with stakeholders We have set out the principles of engagement and consultation with the devolved Governments through a memorandum of understanding, which has been negotiated and is close to agreement. This will sit along- side the legislation and provide the opportunity for the devolved Governments to be involved at a formative stage of policy development. In addition, the principle of Amendment 231C, which we have just discussed, is a requirement for the relevant devolved Governments’ consent to be given to transfer any functions that are within their legislative competence or that modify functions exercised by the devolved Government Although the majority of the arm’s-length bodies and functions within the scope of the power relate to reserved matters or apply in England only, certain bodies have functions that meet the criteria laid out above. We all know that the arm’s-length body landscape is complex, and this power will ensure that there is a transparent process throughout, including formal consultation, so that any relevant arm’s-length bodies and devolved Governments, and Parliament, will have the opportunity to scrutinise any plans for its use. I hope that that has given some assurance, and for these reasons I ask the noble Baroness to withdraw her opposition to the clause standing part.
I thank the Minister for his reply and the reference to parliamentary scrutiny. He will know that, in discussions in this Committee, the call for transparency and scrutiny has often been repeated. I am interested in the reassurances that the Minister has given and will consider his points further. I am sure that he understands that there is a feeling that these powers are still not necessary—not now—but I will certainly consider his points. With that, I beg leave to withdraw my opposition to Clause 88 standing part.
My Lords, it is a pleasure to hopefully conclude this Committee stage of the Bill with some government amendments, which I hope will receive a welcome from the Committee. When we announced our intention to become one of the first countries in the world to fully ban virginity testing, in the Tackling Violence Against Women and Girls strategy, we also stated that we would establish an independent expert panel to review the ethical, legal and clinical aspects of hymenoplasty, a cosmetic procedure to reconstruct a hymen. This announcement followed concerns, highlighted in an internal review into virginity testing and hymenoplasty, that demand for hymenoplasty is driven by a repressive approach to female sexuality and is closely linked to virginity testing—an abhorrent practice that the Government brought forward an amendment to ban in the House of Commons However, as hymenoplasty is a cosmetic procedure, we recognised that a ban on it would mark a step change that could be counter to existing regulation on cosmetic procedures. Further concerns were raised that a ban would take away a woman’s right to choose what happens to her body. The panel’s task was to carefully consider these incredibly difficult and competing issues at length. The panel has now delivered its final report to the Government, which includes a robust set of recommendations. I take this opportunity to thank the co-chairs and all the panel members for the time and commitment they have dedicated, on a voluntary basis, to this incredibly important issue As we announced in Our Vision for the Women’s Health Strategy for England, the Government agree with the panel’s core recommendation that hymenoplasty should be banned. It is inextricably linked to virginity testing, and failure to prohibit hymenoplasty would not only undermine the Government’s commitment to address the violence against women and girls by criminalising virginity testing but also leave women and girls at risk of further harm and continue to perpetrate the harmful myths and attitudes towards virginity The package of amendments brought before the House today delivers on this promise. It would create three offences: carrying out hymenoplasty, offering hymenoplasty, and aiding or abetting another person to carry out hymenoplasty in the UK or on UK nationals overseas. Each of these offences carries a maximum penalty of five years’ imprisonment and/or an unlimited fine. This sentencing reflects the long-term physical and psychological damage that this repressive practice can cause. These offences, alongside the proposed virginity testing offences, begin to tackle the harmful misconceptions that surround a woman’s sexuality In response to concerns that vulnerable women and girls will be taken abroad and subjected to hymenoplasty once the offence is banned in the UK, these offences also carry extraterritorial jurisdiction. These proposals have been discussed by Health Ministers across the UK, and my noble friend is working with them to ensure the whole of the UK, together, tackles this harmful practice These amendments are an important milestone in this Government’s ongoing mission to safeguard women and girls but our work will not stop here. The Government recognise that banning virginity testing and hymenoplasty alone will not tackle the harmful misconceptions and misbeliefs surrounding virginity. That is why we will also put in place a programme of education in community, education and clinical settings Finally, I give thanks to my noble friend Lady Sugg for bringing the practice of hymenoplasty to the attention of this House, and for the wider work she is doing on this issue to improve the lives of women and girls. I hope the House will pass the Government’s amendments today and allow our important work on safeguarding and improving the lives of women and girls across the UK to continue. I beg to move.
My Lords, the noble Baroness, Lady Brinton, is participating remotely and I call her to speak.
My Lords, I want to speak very briefly to thank the Ministers for listening to the noble Baroness, Lady Sugg, and the noble Lord, Lord Patel, and others who have been working with the RCOG and others to ensure that both virginity testing and hymenoplasty procedures are banned. As the noble Baroness, Lady Penn, said, to ban one without the other would have been unhelpful, because they are inextricably linked. It is particularly good to see that extraterritorial jurisdiction is included too I am also delighted to hear about the creation of resources for education and training, which is vital for working with young people and their communities to ensure that they are kept safe from virginity testing and hymenoplasty. Will there be special funding for this? Without funding and resources, it will be difficult to make sure that this work is carried out throughout the at-risk communities.
My Lords, I originally had an amendment down to criminalise hymenoplasty in this Bill, but I have been pleased to withdraw that and put my name to the government amendment instead I asked a question on banning hymenoplasty of my noble friend Lord Kamall back in October. He gave me his word that he would push this as much as possible to make sure that we ban both virginity testing and hymenoplasty. He has kept to his word, and I am very grateful to him It is late in the evening—well, early in the morning—but I want very briefly to give your Lordships a first-hand account of why this is such an important amendment. Hafsah—which is not her real name—was raped as a child. Afterwards, her parents became obsessed with the idea of presenting her as “pure” on her wedding night, and her father told her that surgery would “fix her shame”. This surgery is widely available on Harley Street and in private clinics at a cost of around £2,000. In support of this amendment, Hafsah said: “If hymenoplasty had been illegal when I was a teenager, it would have saved me a lot of emotional abuse. I’m sure it will be a great comfort to vulnerable girls in a similar position to know that the law is on their side. It should give them the strength to stand up for themselves.” This ban on both virginity testing and hymenoplasty will be a substantial step forward in tackling the damaging myths and stigmas about virginity. Neither procedure has any medical benefit. Both are harmful practices that create and exacerbate social, cultural and political beliefs that attach a false value to women and girls in relation to whether they have a sexual history I am grateful to my noble friend the Minister for explaining the work that the Government will do on education in community and clinical settings. I hope that they will also ensure that they implement the other recommendations of the expert panel on hymenoplasty and sustainably fund the specialist organisations that support women and girls at risk of honour-based abuse Finally, there have been many campaigners involved over a number of years to bring about this change in the law: IKWRO, Karma Nirvana, MEWSo, Nimco Ali, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, Garden Court Chambers, Richard Holden MP, all those on the expert panel, and many others. I pay tribute to their hard work, tenacity, perseverance and patience. It has been my privilege to speak on their behalf in this place. This amendment will make a difference to the lives of many women and girls, and it has my full support.
My Lords, I rise very briefly to thank in particular the noble Baroness, Lady Sugg, for so tenaciously making sure that this important amendment is passed. In my view, this is some of the most important legislation in the Bill. As the noble Baroness said, it will save a lot of young girls and women from a lot of pain and hardship. I was pleased to add my name to the amendment.
My Lords, very briefly in view of the early hour, I wish to join others in welcoming this amendment and thanking the Minister for taking notice of what the noble Baroness, Lady Sugg, chair of All-Party Parliamentary Group on Population, Development and Reproductive Health, has done with other actors I want to make two points. First, the people who have brought the work to this point recognise that this practice, although rare, happens disproportionately within particular cultural and religious groups. I therefore ask the Minister whether the religious element of this will feature in the materials that are to be prepared Secondly, will FCDO staff learn lessons from the forced marriage legislation on how we spot young girls who are particularly vulnerable to this and particularly at risk of being taken abroad? Can I make the assumption that, were any medical practitioner registered in the United Kingdom to be found performing these operations abroad, they would still be dealt with by the medical authorities in this country when that came to light?
My Lords, I am very glad that the Government have heeded the calls of victims and experts alike to make hymenoplasty a criminal offence, along with virginity testing. As we have heard repeatedly both this evening and in the course of campaigning for this, the two practices are inextricably linked. It is right that those who carry out or facilitate these practices should face justice and that no woman or girl should have to suffer these abusive, intrusive and medically unsound practices. This legislation will send the strongest of messages and I am very glad that education will underpin it Of course, the fight to end violence against women and girls is not over, but it has taken a step forward in this measure. I add my thanks to all those who have campaigned tirelessly on this, as outlined by the noble Baroness, Lady Sugg. I thank the noble Baroness, the noble Lord, Lord Patel, and others for all they have done in your Lordships’ House to bring this forward. This is a positive point on which to bring our deliberations in Committee to a close. I very much welcome this move.
My Lords, I thank noble Lords for the short but constructive debate on these amendments. I add my thanks to the noble Lord, Lord Patel, for his support on this issue My noble friend Lady Sugg asked about the other recommendations in the panel’s report. Of course, the amendments brought forward today satisfy many of the recommendations made in the final report, including: prohibiting the advertising of hymenoplasty; the inclusion of extraterritorial jurisdiction; ensuring that women will not be criminalised for undergoing hymenoplasty; and that there should be no defence or exemption for a healthcare professional or anyone to carry out hymenoplasty. The Government are carefully considering the panel’s remaining recommendations and will provide an update on this in due course There were also a number of questions about implementation. Guidance will be produced alongside these offences coming into force. It will make clear that hymenoplasty is a form of violence against women and girls and lay the framework for how it can be prevented and, when it has taken place, reported. While the details of the guidance are being carefully considered, I can say that it will focus on how the Government, local authorities, social services, the police, education providers and third-sector organisations and community groups can work together to effectively safeguard women and girls A number of other specific points were raised, such as whether the FCDO can learn from legislation relating to forced marriage and measures to spot girls who are at risk, the religious element which may feature within this, and UK-registered practitioners conducting these practices abroad. I suggest I write to noble Lords with further detail in response to those questions.
My Lords, just before we finish, I say on behalf of us all a big thank you to the clerks, the doorkeepers, the Bill team and all the officials who have worked so late.