Wednesday 26th January 2022
(2 years, 9 months ago)
Lords ChamberHealth and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VI(a) Amendments for Committee (Supplementary to the Sixth Marshalled List) - (26 Jan 2022)
Baroness Thornton (Lab)
My Lords, I would much prefer that the noble Baroness, Lady Cumberlege, should open on this group. I will speak to the question of whether Clause 40 should stand part when that has happened.
Baroness Cumberlege (Con)
My Lords, I will speak to Amendment 179 and the other amendments in my name. I thank the noble Lords who put their names to these amendments: the noble Lords, Lord Shipley, Lord Hunt of Kings Heath and Lord Patel. We are told that the driving force of the Bill is to ensure that health and care services are delivered at place; and to empower local leaders—leaders who know what their local communities’ needs are and who will make decisions about how care is delivered. I am sure that is music to the ears of my noble friend Lord Mawson.
We are told that the integrated care systems—the ICSs—will be given the flexibility to plan, to commission and to provide services according to the specific needs of their population. This principle is undermined by the unchecked power that the Bill gives the Secretary of State over local configuration of services. I am pleased to tell your Lordships—particularly my noble friend Lord Howe, who is on the Front Bench for this item—that Amendments 179 to 183 have the support of a number of influential voices. These are voices from the health and local government sectors, the NHS Confederation, the King’s Fund, NHS Providers, the LGA, the BMA, National Voices and the Centre for Governance and Scrutiny. These organisations cover NHS leaders, local authorities, clinicians and patients. It is significant that they are united in their deep concern about the powers that the Secretary of State would have over local reconfigurations as the Bill currently stands.
Of course, there is an existing system for local reconfiguration and it works very well. It is overseen by the Independent—that word is very important—Reconfiguration Panel, the IRP. This has helped take politics out of the difficult decisions surrounding services. Crucially, the current process for service reconfiguration starts with local consultation and consideration of clinical advice. These elements are fundamental, and they must be maintained in a future process. In short, the Secretary of State should be able to intervene in a decision about local services only once local people have had their say on the proposed changes, and once clinical advice has been considered. It will be to the detriment of patient safety if it has not. Under the existing arrangements, when the process takes too long, it has often not been about the IRP but about the Secretary of State’s failure to reach a decision, yet the Government state that the new powers are needed to speed up the process.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
I call the noble Lord, Lord Howarth, who is participating remotely.
Lord Howarth of Newport (Lab) [V]
My Lords, your Lordships’ Select Committee on the Constitution, of which I have the honour to be a member, has advised the House, as has the Delegated Powers and Regulatory Reform Committee, that this Bill is a skeleton or framework Bill. It provides a multitude of vaguely delineated powers and duties. It is often impossible for noble Lords to scrutinise these meaningfully because their meaning is so unclear
The Bill is also an instance of a growing tendency in the Government’s legislative practice to create “soft law”—that is, guidance, rules and directions which are not susceptible to parliamentary scrutiny but are, in, effect binding. It also creates “hard law”, which is not susceptible to parliamentary scrutiny, as in the Henry VIII power in Clause 15, but is subject only to the negative resolution procedure.
This manner of legislating is part of a pattern documented in a long series of reports by the Constitution Committee, drawing the attention of the House to Henry VIII clauses which are convenient to the Executive but subversive for parliamentary democracy, and to the creation of delegated powers enabling Ministers to bring in significant policy change subject to little or no parliamentary scrutiny. The DPRRC has reported that the Bill contains no less than 155 delegated powers.
What is egregious, however, are the autocratic powers that the Bill accords to the Secretary of State. I had sought to indicate that I wished to speak on the previous group, but there was some confusion, and the Chair did not invite me to do so. I hope therefore that noble Lords will bear with me as I take us back for a moment.
As the noble Lord, Lord Hunt, and others, noted Clause 39, entitled
“General Power to Direct NHS England,”
states:
“The Secretary of State may give NHS England directions as to the exercise of any of its functions.”
It goes on to say:
“The directions that may be given include a direction as to … when or how a function is, or is not, to be exercised”
and
“matters to be taken into account in exercising a function.”
The autocratic power provided by Clause 39 is exacerbated by Clause 64, which repeals the duties previously placed on the Secretary of State to respect autonomy within the NHS.
The mischief, which the noble Baroness’s amendments in this group seek to mitigate, is further compounded by Clause 40 and Schedule 6, which confer comprehensive powers on the Secretary of State in regard to reconfiguration of NHS services. Effectively these three clauses together confer upon the Secretary of State, with only the exception stated at proposed new Section 13ZD in Clause 39, mainly in relation to clinical discretion, absolute power over the NHS.
We are told that the Secretary of State has no intention of bossing NHS England around and that he needs powers to sort out failures within the NHS system. In our earlier debate today on continuing care, and in his response to the last debate, the Minister said it is not the Government’s intention to interfere unduly in the affairs of ICBs. However, in a letter to the Times today, referred to by the noble Baroness, the chief executive officers of the King’s Fund, NHS Providers and the NHS Confederation warn of the danger that the Bill may lead to politicisation of decision-making in the NHS, of the kind which the noble Lord, Lord Warner, described in the last debate and which the noble Baroness, Lady Cumberlege, has just explained. The fact remains that Clauses 39, 40 and 64 make the Secretary of State untrammelled master of the NHS.
With such power comes temptation, not least for Department of Health officials. What might “unduly” mean in practice? The Secretary of State may often refrain from interfering, but too often he, or officials acting in his name, may not. In any case, to accord the Secretary of State such excessive power is wrong in principle. The legislation should strike an acceptable balance between the autonomy which NHS leaders and managers need if they are to do their jobs well, responding as they judge appropriate to local needs, and a due accountability of the NHS to the Secretary of State and, through him, to Parliament. Here, however, we have neither. The Bill concentrates power over the NHS in the hands of a Minister who is poorly accountable to Parliament in the exercise of much of his power.
Lord Stevens of Birmingham (CB)
My Lords, it is a privilege to speak to this group of amendments. I recognise that a public service as important as the National Health Service has to be democratically accountable to the Secretary of State and Parliament. I also recognise that the broad provisions of the Bill have wide support outside this House from organisations ranging from the Academy of Medical Royal Colleges to the representative organisations spoken of today, the Patients Association, and many others which, at the inception of these proposals, came forward to advocate for them.
However, unfortunately, when we turn our attention to Clause 40 and Schedule 6 there is no such support for the measures therein. These provisions manage, perhaps uniquely, to combine being unnecessary, undesirable and unworkable—a legislative trifecta that has little to commend it.
The measures are unnecessary for the reasons set out by the noble Baroness, Lady Cumberlege. There is already a well-established mechanism for local consultation, under which democratic local authorities can, if concern arises, bat a proposal up to the Secretary of State for a national decision with the advice of an independent expert panel. There is also established public law in this area, which can be tested through judicial review. Just about nobody, nationally, or locally, thinks that the proposals in this part of the Bill are needed. They are, in effect, a solution in search of a problem.
As well as unnecessary, these proposals are undesirable. They would confuse and obscure accountability for the quality and safety of patient care. The Court of Appeal held in Nettleship v South Tyneside and Sunderland CCGs in 2020 that there is no duty to include in a public consultation options which local commissioners deem to be unviable, unrealistic or unsustainable. Yet Schedule 6 would allow the Secretary of State to impose service changes that local clinicians, local patient groups and, indeed, local authorities deem unsafe or unviable. This clearly cuts across the statutory responsibilities of local boards for the safety and quality of care.
Where the Secretary of State has imposed such a service change on the local NHS, is it the Secretary of State who will then be in receipt of Care Quality Commission findings and scrutiny? Is it the Secretary of the State who will be on the receiving end of medical negligence claims, or potentially criminal proceedings? This set of measures completely obscures the well-established accountability for the quality and safety of local care.
I believe that these measures are unnecessary and undesirable, but they are also unworkable. As worded, the definition of a reconfiguration is vague and overly broad. It could capture just about any change in service provision. On page 197, the Bill refers to changes that have
“an impact on … the manner in which a service is delivered to individuals.”
That could cover just about anything, and if hospitals are proposing such a change, they have a duty to notify the Secretary of State.
By contrast, the long-standing Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, with which your Lordships will be intimately familiar, set a higher hurdle, which is that the consultation requirement applies to
“a substantial development or variation”
in services. In its place, we would instead have, through the Bill, a set of processes that would lead to second-guessing, centralising and politicising, a furring-up of the NHS’s decision-making arteries, which, had these measures been in place during the pandemic, would have handicapped the response, at precisely the time when the NHS needs to be agile and adaptable, and will do nothing to advance the changes needed across front-line care delivery.
For all these reasons, I believe that if the Bill is passed in its current form, Clause 40 and Schedule 6 will become a running sore, not only for patients and local service but for Ministers. There are two possible ways forward. There is the proposal that Clause 40 do not stand part of the Bill, as suggested by the noble Lord, Lord Lansley, which would surgically excise the problem, or there is the group of amendments tabled by the noble Baroness, Lady Cumberlege, which would apply sutures, analgesics and disinfectant. Either approach could work, but one or the other is needed.
Lord Shipley (LD)
My Lords, I am very glad I delayed my speech so that I could hear the noble Lord, Lord Stevens of Birmingham, because I agree with everything he said.
My name is on Amendments 179 to 183 in this group. I shall try not to repeat the comprehensive explanation by the noble Baroness, Lady Cumberlege, of the problems these amendments would address, which are similar to those that we debated in the previous group. I hope that the Minister will accept that the proposals in the Bill as they stand are overcentralising, and that this issue will have to be addressed by the Government on Report.
I agree very strongly with the noble Lords, Lord Howarth of Newport and Lord Stevens of Birmingham, who made unanswerable contributions. In the words of the noble Lord, Lord Stevens, these provisions are unnecessary, undesirable and unworkable, and they confuse and obscure accountability. I hope the Minister will take very seriously what is being said because the Bill’s ambition is to increase transparency and accountability. That is right, but it surely should be prioritised at a local level since that is where services are delivered. The Bill undermines that principle. It thinks accountability should lie in Whitehall, yet there has been no strong call to enable the Secretary of State to intervene earlier in the reconfiguration process and, anyway, there is already an established role for the Secretary of State in cases that are referred. Those processes should not be undermined.
Amendment 179 would change the definition of a reconfiguration of NHS services to ensure that only complex and significant changes to NHS services should be considered. Surely that is right. Amendment 180 would require the Secretary of State to consult all relevant health overview and scrutiny committees plus those organisations delivering relevant services locally along with the integrated care board. That must be right. Amendment 181 would require speedy decisions, and that must be right. Amendment 182 would require the Secretary of State to publish a statement demonstrating that any decision made by the Secretary of State on a reconfiguration proposal is in the public interest and has been taken with patient safety as a priority. That must be right. Crucially, Amendment 183 would prevent Secretary of State acting as the catalyst for a reconfiguration. That, too, must be right.
I hope the Minister will understand that there is much concern about the proposed new powers for a Secretary of State to intervene at any stage in a local service reconfiguration without any need to demonstrate the basis of the information on which their decisions might be reached. There is already a clear process for reviewing proposals for NHS reconfigurations, which are health overview and scrutiny processes charged with establishing whether proposals are in the best interests of their local communities.
What the Government are proposing is not in the spirit of the Bill, and I hope they will take note of the concerns expressed by the NHS Confederation and many others and bring back further amendments on Report to address them.
Lord Patel (CB)
My Lords, I support all the amendments in the name of the noble Baroness, Lady Cumberlege. She introduced them very comprehensively and I agree with what she said. My noble friend Lord Stevens of Birmingham added to it, so much has already been said and I need to be extremely brief.
I concur with my noble friend Lord Stevens of Birmingham that outside bodies, including professional organisations in medicine, oppose these powers and that they will lead to more chaos rather than solving problems. As a clinician, I find the unchecked powers for Secretaries of State over local service reconfigurations that the Bill proposes astounding. Local service reconfigurations should be driven by clinical advice and expert assessment of what services are needed to meet the health needs of a local community with patient safety at the heart, as well as considerations about what resources are available in terms of workforce, infrastructure and the proximity of alternative services.
The powers in the Bill would allow the Secretary of State to initiate service changes without any consultation. How can any Secretary of State feel sufficiently qualified to be making unilateral judgments about what constitutes “safe”? The existing, largely successful, processes, which have already been mentioned, take account of clinical advice and the views of local communities in the final decision have been effective. The noble Baroness gave the example of Kent and Medway stroke services, which were held up by the Secretary of State, not by the consultation. I strongly support these amendments and I hope that the Minister will think about removing the provisions from the Bill.
Lord Lansley (Con)
My Lords, I shall be brief. I put my name to Clause 40 stand part, and I think that is the best way to go. I shall add one or two things. First, as Secretary of State, I asked the now noble Lord, Lord Ribeiro, to lead the independent reconfiguration panel, and I never had cause to regret doing so. Secondly, I can say something which other noble Lords cannot, because I am on this side, and I am hoping that we continue to have Conservative Secretaries of State for many years hence. They will be much better off if they do not do this. If the Government take Clause 40 out, they will equally not regret doing so.
Lord Hunt of Kings Heath (Lab)
My Lords, I described at Second Reading, or at some point in a meeting with the Minister, an attempt to save Ministers from themselves. I do not understand why on earth the Government want to put this burden on them. The Government have set out an ambitious programme for reform of the NHS. Why put in a clause that guarantees that that reform will be stalled? We know that reconfigurations—most of us have experienced the issue locally, if not nationally—are very difficult. There is always local opposition, often from some leading consultants, and to get it through you have to be very determined. The noble Lord, Lord Warner is right; once Ministers can intervene at any point—for example, if an MP’s local services are threatened with an unpopular change—even in the Lords, the pressure on them to intervene can be huge.
Lord Lansley (Con)
If anyone cares to look at it, it was also a very good illustration of the benefits of the Independent Reconfiguration Panel. Not only did it do something that Ministers could not do; it also did something that NHS management did not do. It is not that we are giving it back to the NHS to do what it likes—it genuinely does something independent.
Lord Hunt of Kings Heath (Lab)
Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.
Lord Warner (CB)
My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.
Baroness Walmsley (LD)
My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.
The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.
Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.
The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.
Baroness Thornton (Lab)
I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.
I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.
Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.
The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I thank all noble Lords and noble Baronesses for their contributions. I would be pretty blind or deaf not to understand the level of concern across the Committee. However, if noble Lords will bear with me, I shall try to set out some justifications. I preface my remarks once again by saying that I strongly hear the views of the Committee, and I welcome the fact that previous Ministers and Secretaries of State are warning us not to fall victim to this, as it were.
I start by explaining some of the justifications. It may be helpful to start with some of the observations. The public expect Ministers to be accountable for the health service, which includes service change. We see the new intervention powers enabling the Secretary of State to act as a scrutineer and decision-maker for reconfigurations, to intervene when, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is a significant cause for public concern. Having said that, we accept that public concern could well be a political one, so we understand the concerns expressed by noble Lords.
We expect this power to be used infrequently and, when it is used, it will be done proportionately and transparently. All decisions made using the new reconfiguration call-in power in the Bill must be published, which will ensure transparency and proper scrutiny. The new call-in power for reconfigurations will allow the Secretary of State better to support effective change and respond to stakeholder concerns, including from the public health oversight and scrutiny committees and parliamentarians in a more timely way.
I turn to Amendment 183. Given the role of the Secretary of State, it is proportionate to ask him or her to ask local commissioners to consider service change where there is concern. Once again, we do not expect this power to be used frequently, and all service changes, regardless of whether a Secretary of State has been a catalyst, will still be required to go through due process and where appropriate local consultation. Before any proposal was agreed, the planning and assurance for a proposal would still have to include strong public and patient engagement, consistency with a current and prospective need for patient choice, a clear clinical evidence base and support from commissioners.
I turn to a couple of points from my noble friend Lady Cumberlege and the noble Lord, Lord Stevens, who said that the powers were unnecessary, undesirable and unworkable. To look at the necessity of the power, the current system can lead to referrals coming very late to the Secretary of State, and the power will allow the Secretary of State to intervene earlier to avoid that. For example, my noble friend Lady Cumberlege referred to the Kent and Medway stroke services reconfiguration proposal. One reason why it was lengthy was the need to review the right options for the system. We are hoping that it goes something like this—that you could either knock heads together or, as someone put it more starkly, have a sword of Damocles over them to come to a decision more quickly. But once again we understand the concerns.
I turn to Amendment 180. It is vital that all local views, including that of the health overview and scrutiny committees, are represented in the reconfiguration. The new power in the Bill will not replace the important local scrutiny and engagement that plays such an important role in service change decisions, and a duty for those locally responsible for service change proposals to consult local authorities will remain. It is right that for commissioners and providers who are responsible for planning, assuring and delivering reconfigurations the duty to consult HOSCs and other local stakeholders continues. We are also introducing a duty for NHS England, integrated care boards, NHS trusts and foundation trusts to provide information and other assistance required for the Secretary of State to carry out functions. That will allow the Secretary of State to take into account local views. We expect the Independent Reconfiguration Panel to consider the views and carry on the way it works.
On Amendment 181, we recognise the importance of timely decision-making—
Baroness Thornton (Lab)
Is the Minister saying that the Government and his department do not trust NHS England to fulfil this function any longer?
Lord Kamall (Con)
No, we are saying that, where there is an issue and it is taking a long time, this measure allows the Secretary of State to come in in a more timely manner rather than waiting for a late referral.
Baroness Cumberlege (Con)
My Lords, before the Minister goes on—just so I do not lose the thread here— could he tell us why the Independent Reconfiguration Panel has to go? What are the problems with it? Why do we have to move it off in order to bring in a politicised system with the Secretary of State making the decisions?
Lord Kamall (Con)
I must clarify here. I have said that we expect the Independent Reconfiguration Panel to continue to consider views. We are not getting rid of it.
Baroness Cumberlege (Con)
So that presents a problem. What does the Secretary of State do, and what does the independent panel do? Is it a question of the scale of the change that is being proposed? Where are the boundaries?
Lord Kamall (Con)
The Secretary of State will be advised by the Independent Reconfiguration Panel, especially where there is a difficult decision that takes time, just as in the case of the Medway.
On Amendment 182, the Secretary of State’s decision-making process must already take into account the public law decision-making principles, all relevant information and his legal duties, including the public sector equality duty. The Secretary of State is also under several duties in the National Health Service Act 2006, including to promote a comprehensive health service and to support continuous improvement in services.
Lord Hunt of Kings Heath (Lab)
There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.
When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.
Lord Warner (CB)
My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.
Lord Kamall (Con)
We agree with the noble Lord. We do not want to waste time by being able to come in only late in the process. To avoid egregious uses of power, all uses are subject to public law principles and challengeable by judicial review.
We agree with the intention behind Amendment 216 but we do not feel it is necessary. Commissioners, NHS England, NHS trusts, NHS foundation trusts and a range of other bodies are required to have regard to the NHS constitution in performing their functions, as set out in Section 2 of the Health Act 2009, which goes wider than this proposed duty that would apply to the Secretary of State.
In addition, the NHS pledges that all staff will be empowered to put forward ways to deliver better and safer services for patients and their families. If a service change is material, the commissioner has a duty to consult with all impacted parties to understand their views and these existing engagement duties can encompass NHS staff. Anyone can respond to a public consultation and there is well-established process and precedent for taking these views into account. Beyond the pledge itself, it is the responsibility of an employer to ensure that staff are appropriately engaged and involved in service change decisions. The need to engage and consult is contained within organisational policies and relevant employment legislation.
I have heard what a number of noble Lords have said, especially former Ministers, Secretaries of State and others involved in the system, and it is quite clear that I need to go back and consult further. In that spirit, I ask that noble Lords do not move their amendments, and hope that I have explained the reasons why.
Lord Crisp
“(a) an individual trust, and(b) the capital expenditure limit.”Member’s explanatory statement
This amendment along with the other amendments in the name of Lord Crisp to Clause 54 seek to deliver the legislative proposals agreed with NHS England and NHS Improvement in 2019.
Lord Crisp (CB)
My Lords, my five amendments to Clause 54 follow on quite closely from the discussions we have just been having about direction. I am very grateful to the noble Baronesses, Lady Walmsley and Lady Morgan of Huyton, and my noble friend Lady Neuberger for their support for these amendments.
The Bill introduces a new power for NHS England to set capital spending limits for NHS foundation trusts. There are two points of context that are worth exploring here. First, obviously the Bill is all about integration, partnership and collective action, within which individual parties need to retain some autonomy as well as giving out more, or perhaps pooling, some sovereignty at the local level. We should also be aware that at the national level NHS foundation trusts’ capital comes within the overall capital allocated by Parliament, and so recognise that, at the end of the day, there needs to be some kind of reserve, backstop power to set foundation trusts’ capital limits.
It is all about achieving the right balance. I understand that three years ago, as part of the thinking behind these wider changes in the NHS when they were being developed, NHS England and NHS Improvement agreed with foundation trusts a set of proposals for this that were set out in the NHS’s 2019 legislation proposals. I am sure my noble friend Lord Stevens of Birmingham can comment on that as appropriate. This clause cuts right through these agreements.
My explanatory statement makes the terribly simple point that what I am trying to do here is to
“seek to deliver the legislative proposals agreed with NHS England and NHS Improvement in 2019.”
I do not see why that is not happening. So, my first question to the Minister is: please could he explain what has changed since 2019 and why the agreement that was struck then is no longer good enough for the current circumstances?
Secondly, these capital freedoms are important. NHS foundation trusts need to be able to invest in order to deliver their services. They need to be able to do so for their boards to be able to exercise their own accountability, and they need to be able to plan. There is also a slightly softer reason why these are important as well, which is about motivation. It is very clear that working efficiently to generate capital to create that freedom is a significant motivator for clinicians within these trusts. I say that as somebody who led two trusts—not foundation trusts—into trust status in the 1990s, and I know how big an issue that is in terms of the staff within these organisations.
So, against that background, these directions should be exceptional and not the rule, and these amendments set out quite clearly ways to make this work in practice. Amendment 188 states that any direction must be about an individual trust and for a specific region and not in any sense a blanket action. Amendment 189 says that it should be used only after all other means of managing a capital expenditure problem have been exhausted; it must be very much a last resort. Amendment 190 says that NHS England should account to Parliament for the action, giving the reasons—telling the story, if you like—and publishing them so that they can be seen very clearly. Amendment 191 makes it clear that any directions should cease after one year, and Amendment 192 is more minor tidying-up. This is a very clear set of amendments which would put in place the 2019 agreement. I see no reason why that should have changed.
I have three questions for the Minister. First, why is this a change from that agreement? What has changed? Why can we not just have that agreement? Secondly, does the Minister agree that this must be very much a last resort, and therefore needs to be hedged round with these sorts of amendments? Thirdly, will the Minister ask his officials to look at this again, perhaps with the involvement of representatives of NHS foundation trusts and NHS Providers, as indeed happened in 2019? I beg to move.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, the amendments in this group, so ably introduced by the noble Lord, Lord Crisp, aim to restrict the powers of the Secretary of State to limit the capital spending of NHS foundation trusts and to ask for the reinstatement of the 2019 agreement. It is important to note that these amendments do not remove the powers as a whole but tighten them to avoid changes by the Secretary of State to funding that would delay capital works which are needed and urgent on health and safety grounds.
Lord Lansley (Con)
My Lords, I intervene briefly to say that I support the amendments in the name of the noble Lord, Lord Crisp. We are grateful to him for tabling them, and indeed for presenting them so very well.
I also rather enjoyed the opportunity from the noble Baroness, Lady Brinton, to think back to 2011, as I think it was, when I went to visit Watford General—I probably announced a new hospital then, but I cannot quite remember. She said the local connections were all funded by the local authority, and I seem to remember paying for the roundabout outside Watford General Hospital, because it was so instrumental to the process of the redevelopment. Anyway, that is by the way.
What I am really looking for from my noble friend on the Front Bench is to understand the mischief to which the Government’s proposals in Clause 54 are the remedy. Certainly, when I was Secretary of State—which is a long way back; we were not in deficit but we did not have a lot of money—the issue every year with the capital expenditure of FTs was that they always told us that they were going to spend a lot and then did not spend anything like as much. To account for that in the public accounting system, we had to make some heroic assumptions about how much less they would spend than they said they were going to spend.
It may be that the department is saying that the way we get round all this is to set very tight limits in the first place—to say where we think they are going and what we think they can spend. This, frankly, is a recipe for disaster for many trusts, because the reason they underspend is that there are so many difficulties in planning and executing capital expenditure projects.
I am trying to find out the purpose behind the Government taking such strong powers in relation to capital expenditure. I rather hope that they might see merit in the amendment from the noble Lord, Lord Crisp.
Lord Stevens of Birmingham (CB)
My Lords, I will be brief. In response to the noble Lord, Lord Lansley, in fairness, there is logic to the broad direction being set out by the Government here. As the financial health of foundation trusts improves, their ability to seek self-generated capital investment will, in all likelihood, be much higher, looking over the next four or five years, than it has been during the more constrained financial circumstances of prior years. So it is not unreasonable to have a set of measures in the Bill that would enable Ministers to ensure that the NHS sticks with the capital expenditure, voted for by Parliament, for the NHS in any given year; nor is it unreasonable on the part of the Government to seek to ensure that there is a mechanism by which that capital can be allocated fairly across the country according to need, rather than purely according to an individual institution’s ability to finance it.
All that being said, rather than this being a fundamental matter of principle in the way that our last two discussions have been, these amendments have a lot to commend them. They are entirely pragmatic and put the right safeguards around what should be only an emergency power. As the noble Lord, Lord Crisp, laid out, that was the basis on which a consensus was achieved back in 2019. It provides good incentives at trust level for sound financial management and, frankly, it provides a bit of a pressure release or a safety valve against an overly artificially constrained capital settlement in certain years or parts of the country.
I very much hope that, in the constructive spirit with which I think these amendments are being advanced, this is something that the Government might consider favourably.
Baroness Neuberger (CB)
My Lords, I declare an interest as chair of University College London foundation trust. I want to echo everything that has been said. I do not really understand why what was a carefully negotiated agreement seems to have been reneged on. I think it would be great to have some kind of explanation from the Minister as to why that should be the case.
I rather agree with the noble Lord, Lord Lansley, that some of those freedoms for foundation trusts are essential, and that fettering foundation trusts too much will not do much good. I really want to agree with everybody and not waste any more time, but please can we have an explanation?
Baroness Walmsley (LD)
My Lords, I have added my name to the amendments in this group, so ably introduced by the noble Lord, Lord Crisp. The noble Lord, Lord Lansley, asked: what is the problem to which Clause 54 is the solution? But I want to know why the Government think that Clause 54 is the solution to the real problem. The real problem is that, over recent years, the funding focus has been on revenue to support the greater demands made on the health service, and, apart from occasional injections of extra capital funding, capital budgets have been inadequate. In the meantime, hospital trusts of both types—foundation and NHS—have found it impossible to keep up with the need for repair and maintenance to buildings and plant and, crucially, to invest in modern technologies that would enable them to deliver more effective care.
An NHS Confederation survey prior to the spending review in October last year found that 81% of leaders said an insufficient capital settlement could impact their ability to meet estate and service safety requirements, and 69% of leaders said a poor capital settlement threatens their ability to fully embed digital transformation in their care and even hampers their efforts to maintain staff levels or keep appropriate records of patients who need elective care. Many of our hospitals and clinics are located in very old buildings and some certainly show it, but capital funding has not kept up with demand for years, and this new Secretary of State power in Clause 54 will not solve the wider problem. St Mary’s Hospital in Paddington will need £1 billion to repair the hospital or services could be shut in six to nine years. Many buildings on the site date back to the hospital’s founding in 1845. One part of the hospital can no longer be used, as the building will no longer support the weight of modern hospital beds.
Annual statistics show that each year we do not invest enough and the problem only becomes bigger. We must keep reminding the Government of the consequences of this. It is worth noting that many areas of the country with the worst health outcomes have older estates, so upgrading these estates will lead to better outcomes for these populations. This is a health inequality issue. The problems are not confined to England. I could tell noble Lords some terrible stories about my local hospital in Wales, where health is devolved. It is easy to find examples of maintenance issues from hospitals, as these get a lot of coverage. The headline “Hospital roof crumbling” is always of interest to local media. However, there are also thousands of small community hubs and mental health trusts that desperately need new and updated facilities and equipment too, and they cannot shout as loudly. The backlog currently stands at £9.2 billion, with half of that, as we have heard, described as involving a high or significant risk to staff and patients.
The new powers for the Secretary of State proposed in Clause 54 would restrict the spending of any individual foundation trust in the same way as NHS trusts are currently limited. This may appear to be fair, and I do not oppose the principle of the Secretary of State having the power. However, it appears to me to be contrary to the principle of freedom of the foundation trusts as outlined by the Government when they were set up, and certainly contrary to the agreement made by NHS England and NHS Improvement with the sector through the September 2019 legislative proposal mentioned by the noble Baroness, Lady Neuberger, which was the result of detailed negotiations with NHS Providers on behalf of their foundation trust members. The reason given by the Government is that this is in order to avoid the overall health budget being exceeded. However, the power needs to be a very narrow reserve power, to be used when all else has failed, and that is what these amendments would ensure.
The Health and Social Care Committee in another place has made it clear that the powers should be used only as a last resort. It has to be remembered that, if a repair needs to be done on the basis of health and safety but is not done, it is the trust that will be blamed for any harm that comes to staff or patients, not the Secretary of State. They are accountable, and that is right, but it does not help them to keep people safe. The noble Lord, Lord Crisp, has tabled this group of amendments to narrow the scope of the power, to ensure in outline what must be done before it is used and, crucially, in my opinion, to require the agreement of Parliament. Currently, the proposal, like many others in the Bill, cuts Parliament out completely. Where the Government are proposing to wipe out an agreement with the sector which is only just over two years old, there must be compelling reasons, mitigating actions and parliamentary scrutiny.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Lord, Lord Crisp, for introducing this group of amendments and setting out for your Lordships that what we need to see is a reasonable system of checks and balances which will serve financial flows and objectives and where, if tensions arise, they can be resolved quickly, fairly and transparently. Certainly, these amendments provide for this.
Earl Howe (Con)
I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.
Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.
The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.
The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.
At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.
Baroness Walmsley (LD)
Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.
Earl Howe (Con)
There will be money to address the backlog of repairs within that total.
Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.
Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.
Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.
Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.
Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.
As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.
Lord Crisp (CB)
I thank the Minister for that reply. I have one point to make and one question. My point is that an NHS foundation trust may cover an area that is bigger than one ICB, and some of the bigger ones obviously do, so it does not quite work in the way that the Minister talked about. My question, and it is my final question, is: will officials re-engage with NHS Providers on behalf of NHS foundation trusts to discuss this matter further in the light of what we are saying so forcefully to the Government about pragmatic solutions to find a way forward to achieve the right balance and what the Minister has said in his response?
Earl Howe (Con)
I had not quite finished the remarks I was going to make, so perhaps the noble Lord will bear with me. I was trying to say that the measures will ensure that there is certainty for all providers about their capital expenditure. It will also prevent the need unfairly to take planned funding away from other providers, such as NHS trusts, where NHS Improvement and, in future, NHS England, set routine capital expenditure limits just to keep expenditure within system control totals, or national capital limits when a foundation trust exceeds its capital limit. Operational detail of how capital expenditure limits are set is best dealt with, we think, in guidance, where we can ensure flexibility and future-proof the provision, rather than in the Bill.
I hope that those remarks are helpful and will persuade the noble Lord to withdraw his amendment this evening. I say to him, as I did at the start, that I have listened carefully to the points he has made in support of his amendments, and points made by other noble Lords, and I undertake to take these points away for further consideration between now and Report. I am aware that my officials are working closely with NHS Providers on a number of issues, and I very much hope that we can resolve any points of difference to everyone’s satisfaction.
Lord Crisp (CB)
I thank noble Lords who have spoken in support of the amendment, for the very clear message that has been given. I also thank the Minister for that reply and those final remarks about thinking about this further and discussing it as appropriate with NHS Providers. On that basis, I am very happy to withdraw my amendment.
Lord Lansley (Con)
I am sorry to interrupt when the Committee was making such good progress. This clause brings into effect Schedule 10 as an NHS payment scheme, which is to replace the national tariff. Unlike the debates that we have just had about Clauses 39 and 40, I have initiated this stand-part debate not to argue that we should simply take it out but because I simply do not understand yet what the precise differences are that the Government intend between the national tariff and the new payment scheme. I am trying to find out more about it in order that we stand some chance, not least at Report, of seeing whether there is a reason to amend or simply approve what the Government are proposing.
We could have a long debate about this but I am not proposing to do so. If I may, I am going to ask a few questions of my noble friend but do not expect to receive all the answers straight away. These are often things that are easy to put down and send to noble Lords, because we will then have a chance at this stage to think about them before Report.
I can see one obvious difference. In new Section 114A, inserted by Schedule 10, new paragraph (b) includes in the payment scheme provision for payments for public health functions under the NHS Act 2006, which is specifically excluded in the tariff. I can see a difference. Beyond that, I start to lose track of what the differences might be.
The tariff under the 2012 legislation allows not only for payments for episodes of care but for services to be bundled; it allows for year of care budgets; I think it allows for—I cannot see any reason why it does not, and certainly work was done to look at this—outcomes-based pricing; and it allows for local price agreements or national prices. Many of the things which, on the face of it, the new payment scheme is designed to allow, seem already to be allowed. What are the differences?
My first question to my noble friend is this. There is no reference in the new NHS payment scheme to what are effectively national prices, such as the national tariff—if we ignore the word “tariff” and remember that it includes the word “national”. To what extent is the new NHS payment scheme designed to do away with national payments or national prices? In new subsection (3), there is different provision for the same service by reference to different circumstances or areas. We could therefore have regional and local pricing set nationally. That, to me, is an innovation, though I am not sure whether or not it is intended.
Secondly, the national tariff made specific reference to non-discrimination between providers by reference to their status, including, specifically, not paying private providers more than could be paid for a public sector or NHS provider. This new payment scheme refers to different provision for different descriptions of providers. Is it intended that the power should be taken back to pay different amounts to private providers than are paid for public sector providers?
On the payment scheme, there is a very complicated subsection, subsequent to that, that talks about provision of services resulting in
“a fair level of pay for providers of those services”
and refers to differences in costs and services provided. What is intended by that? On differences in services provided, I can see, for example, that if a price is being paid to one provider for a routine service and another provider—which may often be the NHS provider—provides intensive care back-up, the fact that this back-up is available should be reflected in the price they are paid, because, inherently, they have to provide additional resources for it. Is that what is intended? Are other differences likely to result from this?
I then come to my final, and in a way most important, question. I have discussed the point about the Government appearing—the noble Lord told me I was wrong about this—to have abolished the purchaser-provider split. Maybe I was wrong, because here, under the rules that are to be set, we find that they
“may allow or require a price to be agreed between the commissioner and the provider of a service.”
Under all this, the purchaser-provider split has re-emerged, somewhere in Schedule 10. Is that what this means, and is it to be agreed by negotiation or by reference to some other mechanism? One of the fundamental issues about the national tariff was that it was intended to be a negotiated outcome between NHS England and NHS Improvement, on behalf of the commissioners on one side and providers on the other. Who is going to engage in these negotiations and who will be the court of appeal, as it were, in relation to that? What is intended by the Government?
I ask all these questions because we just do not know any of the answers—I certainly do not, but maybe I am missing something. If the Government can share further information about some of these points, that would help me to know whether we want to help speed the clause on its way, or interfere with amendments on Report. I move that the clause does not stand part of the Bill.
Lord Davies of Brixton (Lab)
I wish to address Amendments 201A, 201B and 201C—my name has been left off Amendment 201A for some reason, but I support all three. Indeed, I support the stand-part debate initiated by the noble Lord, Lord Lansley.
I have attended virtually the whole debate in Committee and have been pretty sparing in my contributions, but on this occasion, I am going to make three speeches in one. I have been asked to pass on the thoughts of my noble friend Lord Hendy, who is unable to be here this evening, particularly given the time—though we are meeting a bit earlier than we perhaps expected. The same is true of my noble friend Lady Blower. Both my noble friends have considerable experience in this area and wanted their thoughts to be added to our debates this evening.
My noble friend Lord Hendy tabled these amendments. I have his remarks here; what he says might be of assistance to the noble Lord, Lord Lansley, in that he explains that this Bill, among other things, is designed to facilitate the outsourcing to private contractors of NHS services which are currently carried out in-house. That may not be explicitly stated, but it is clearly one of the underlying aims.
That is the Government’s policy, even though it is firmly opposed by most of the citizens of this island. That said, the purpose of these amendments is to protect NHS workers from the consequences of this policy. Usually when public services are outsourced, the contractor makes profit by reducing the number of staff performing the work formerly done in house and by cutting staff wages, terms and conditions. The TUPE regulations mitigate that process, but usually only by delaying it.
These amendments do not prevent staff reductions consequent on outsourcing beyond the protections in TUPE. In any event, the danger of staff reductions is diminished, bearing in mind that at the end of last year the NHS had 93,000 vacancies and an additional 110,000 staff off sick, half with Covid.
Amendment 201A seeks to prevent cuts to the wages, terms and conditions of NHS staff who are outsourced, and prevent contractors’ staff on worse terms undercutting in-house staff. It does so by requiring that the pricing rules for paying contractors must preserve, then and for the future, NHS staff rates and terms as negotiated between the NHS unions and NHS employers. Payment of those prices will depend on honouring those terms.
I hope the Minister will accept the legitimacy of the need to protect NHS staff in this way, perhaps—my noble friend adds—by better drafted amendments than mine. I am sure the Minister recognises that NHS staff need protection from wage cuts consequent on outsourcing. We must not have a two-tier workforce.
NHS staff are grossly underpaid and the real value of their wages is falling. After years of pay freeze, last year’s miserable 3% wage increase is destroyed by 6% inflation this year. The inadequacy of their terms and conditions is the prime reason for the extraordinarily high level of vacancies—a vacancy rate that increases as more and more work is done by fewer hands. Only heroic dedication by NHS staff prevents the vacancy level becoming a catastrophe.
Amendment 201A also protects against a different kind of two-tier workforce: contractors using the NHS payment scheme to fund salaries above NHS rates to attract certain categories of staff away from NHS posts. The current starting salary for an NHS nurse is £25,655, whereas the equivalent in the private sector is £37,500. No one could begrudge nurses earning whatever they can for their vital work, but NHS funds should not be used to finance a higher rate outside the NHS than within it.
Amendments 201B and 201C are intended to ensure that unions are among the consultees on the likely impact of payment schemes. Obviously, the workforce should be consulted.
My noble friend Lady Blower added her name to all three amendments, and she draws our attention to the fact that my noble friend Lord Hendy is one of our foremost labour lawyers. Some in your Lordships’ House have long experience of trade unions and trade unionism. I therefore hope that they will recognise this quotation:
“Trade unions have been an essential force for social change, without which a semblance of a decent and humane society is impossible under capitalism.”
That was not Marx, Engels or any of the great leaders of the TUC, or a general secretary of a major trade union. The quotation is actually from Pope Francis. Given that we all want to live in a decent and humane society, we should all promote the important role of trade unions. This is in part what these amendments would do; they are about fairness and justice for workers.
Lord Stevens of Birmingham (CB)
I shall briefly make two points. First, having looked at this quite carefully, it is good to see that there is nothing in the proposals for the payment scheme that would intrinsically give rise to the concerns just articulated. Secondly, in response to the noble Lord, Lord Lansley, there are very good answers that can be provided, even if not now, to the questions that he poses. One starting point would be to look at the judgment that the Court of Appeal handed down at the end of 2018, which essentially confirmed that what he said is correct. It is just about possible to torture the 2012 tariff system to make it fit for purpose, but an incredibly elaborate set of workarounds is required to do so, with an enormous amount of bureaucracy and that covers only about 60% of the fund flows in the National Health Service. Hence the desire for something more flexible, which this set of clauses enables the NHS to take forward.
Baroness Thornton (Lab)
My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.
I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.
I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.
The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?
Lord Kamall (Con)
I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.
Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.
However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.
I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.
I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.
I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.
On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.
On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.
I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.
On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.
The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.
If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.
Lord Lansley (Con)
My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.
We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.
For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.
Baroness Meacher
“(1AA) The regulations must make provision—(a) for anyone with a diagnosis of terminal illness to be offered a conversation about their holistic needs, wishes and preferences for the end of their life, including addressing support for their mental and physical health and wellbeing, financial and practical support, and support for their social relationships,(b) that, where that individual lacks capacity for such a conversation, it is offered to another relevant person, and(c) that for the purposes of section 12ZB a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”Member’s explanatory statement
This amendment ensures that the scope of the regulations as to patient choice includes those at the end of life.
Baroness Meacher (CB)
My Lords, in moving Amendment 203, I declare my interest as chair of Dignity in Dying, the sister organisation of Compassion in Dying. This amendment is supported by Marie Curie, Together for Short Lives, Hospice UK, Sue Ryder and the Alzheimer’s Society, as well as Compassion in Dying, a national charity which enables people to prepare for the end of life. I thank them all for their support and their briefing. I apologise—I have cut my speech to the bone in light of the late hour.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I now call the noble Baroness, Lady Brinton, to speak remotely.
Baroness Brinton (LD) [V]
My Lords, there are two amendments in this group, both dealing with end-of-life arrangements, and I support both of them. Amendment 203 in the name of the noble Baroness, Lady Meacher, would put on the face of the Bill an extremely important provision—that of giving anyone with an end-of-life diagnosis the right to a conversation about their needs, how and where they want to die, and how they can be given the support they need to achieve that. This is long overdue. Our excellent palliative care and end-of-life healthcare clinicians and professionals carry out an invisible yet vital service to people. But unfortunately, it is not universal.
Why, oh why, as a nation, do we hate to talk about dying? I have seen both the best and worst in practice. Indeed, very recently, a friend in hospital who was told that he had a few weeks left wanted to go home to die. No one at the hospital used the phrases “end-of-life care” or “palliative care” or even talked about hospices. They thought he was not close enough to death to get to that stage. Instead, there were discussions about setting up the right domiciliary care, or possibly a care home through the council. This amendment would ensure that when the diagnosis of end of life is made, that conversation will happen for all patients. That is very welcome. It is too late for my friend, who died while he was still in hospital.
Amendment 297 in the name of the noble Lord, Lord Forsyth, sets out the requirement for the Secretary of State to lay a Bill before Parliament to permit terminally ill and mentally competent patients to end their own lives with medical assistance. I offer my deepest sympathies to the noble Lord, Lord Forsyth, on the death of his father. I look forward to hearing his speech on this amendment, and I apologise that, due to the remote contribution rules, I have to comment on it before he speaks.
Both the Private Member’s Bill brought by the noble Baroness, Lady Meacher, and before it the Private Member’s Bill brought by the noble and learned Lord, Lord Falconer of Thoroton, had exceptionally sensitive and thoughtful debates in your Lordships’ House, but neither has progressed any further. We know that public views have changed—like those of the noble Lord, Lord Forsyth—in light of sad family experiences of death where pain and trauma were not controlled and where, for too many people, access to palliative care and end-of-life care was just a lottery.
I have spoken in the debates on both those Private Members’ Bills in favour of assisted dying and remain firmly committed to campaigning for it, but that is not what tonight’s debate is about. If accepted, Amendment 297 would not immediately change the law on assisted dying. It would merely require Ministers to bring forward draft legislation, not even to campaign in its favour.
Government is well placed to draft the legislation, encourage a wider public debate through consultation and bring together voices and views from right across our society in a way that perhaps the polarised debate between individual MPs and Peers on such a complex issue always makes difficult. Government can and should maintain their neutrality on assisted dying, but they can guarantee sufficient time for the consideration of the legislation.
It is worth noting that in those jurisdictions where assisted dying has been made legal, there have not been the disastrous consequences predicted by opponents. Instead, those laws continue to receive huge popular support many years after legalisation. In no jurisdiction has any law been passed on assisted dying and subsequently repealed, demonstrating perhaps that the fears of opponents to assisted dying have not come to pass.
The Crown Prosecution Service has recently opened a consultation on the introduction of a prosecution policy for homicides that can be categorised as mercy killings or suicide pacts. The prosecution guidelines, if approved, would add clarity to the law in the same way as the prosecution policy on assisted suicide adopted over a decade ago. While this is helpful, it does not change the law, and it cannot protect dying people with a legal choice of how to end their life, nor can it protect their families, as decisions would be made by the CPS only after the death of the person. I have seen a family friend have to go through the trauma of a police investigation after her husband took his own life. He deliberately chose a day when she was 100 miles away to protect her. It still took months for the police to make their decision and, frankly, it was cruel.
What we need above all is a commitment to a public consultation and parliamentary time for a wider debate on assisted dying. Amendment 297 provides that. It does not change the law on assisted dying. Tonight is not the right time for that, but I think the country is ready for that debate. Both these amendments are vital in their own way, and I hope that the Minister will be able to respond favourably.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite her to speak.
Baroness Campbell of Surbiton (CB) [V]
My Lords, I wish to oppose the two amendments in this group. Amendment 203 extends the scope of regulations on patient choice under the National Health Service Act to require particular services to be provided at the end of life. It is, I am afraid, clear from the speech made by the noble Baroness, Lady Meacher, on Amendments 47 and 52 in Committee that this is to include the right to assisted dying. It is directly linked to Amendment 297 in the name of the noble Lord, Lord Forsyth.
I am afraid I do believe that these two amendments are an attempt to hijack the Bill to promote a change in the law on assisted dying. I do not feel tonight is the time to discuss the merits or otherwise of assisted dying. By no stretch of the imagination is assisted dying within the scope of this Bill. There is a separate Private Member’s Bill already before this House, awaiting detailed scrutiny. That is the right vehicle to debate this issue and that is where it should be debated—not here, not tonight and certainly not at this late hour.
Moreover, Amendment 297 seeks to force the Government’s hand into requiring it to prepare a draft Bill on a subject that has not yet been agreed by Parliament. To date, the Government have, studiously and quite properly, taken a neutral stance. This amendment could be seen as a deliberate manipulation of the parliamentary process to provoke a viewpoint that is known to be contentious, and to force the pace of further scrutiny before Parliament, and before parliamentary time has been made for it.
Given the existing pressures on the Bill before us, these tactics are, I believe, truly not worthy of your Lordships’ House, so I hope that the Minister agrees with me that the amendments should be rejected and withdrawn. This is not the place to have this debate.
Lord Forsyth of Drumlean (Con)
We have just listened to very powerful speeches by the noble Baronesses, Lady Campbell and Lady Brinton.
I would like to begin with an apology to all Members whose email inboxes have exploded over the last 48 hours. If it is any consolation, so did mine. I got the same emails, all of which were identical and came from the same email address, info@righttolife.org.uk. They began:
“Dear Lord Forsyth, I am making contact on an urgent matter. As you probably know, Lord Forsyth has tabled an assisted dying amendment to the Health and Care Bill, and this amendment will be debated next week. I am asking that you please oppose this dangerous amendment”.
The first point I would like to make is that it is very late at night, so I am going to keep my remarks brief. Contrary to what the noble Baroness, Lady Campbell, said, this has got nothing to do with the amendment of the noble Baroness, Lady Meacher. The reason that they are grouped together is because I asked for them to be grouped together; otherwise, it would have come up on a Friday when I could not be here. There is no common link in the terms of these being about assisted dying, and the noble Baroness, Lady Meacher, has explained why her amendment is not about that.
My amendment is not actually about the merits of assisted dying. It is true that I have changed my mind on this matter as a result of not just my own experience with my father but also because all the time that I opposed it I have felt a bit of a hypocrite, because if ever I was, for example, to contract motor neurone disease, I would want the right to assisted dying. I felt it was rather hypocritical to vote against something that I would want for myself. But I persuaded myself that I was doing so because there were certain protections that were needed. That is all I am going to say about that—and I was not going to say anything at all—because the noble Baroness, Lady Brinton, raised it. It is an unusual position to be proposing an amendment when it has already been opposed, before you have even spoken to it.
Baroness Bennett of Manor Castle (GP)
My Lords, the Green group is operating on the lark and owl system —appropriately enough, you might say. My noble friend Lady Jones of Moulsecoomb attached her name to Amendment 203 in the name of the noble Baroness, Lady Meacher. I am going to be brief, as I am aware of the pressures. I find it very hard to see why anyone would resist Amendment 203. It is about providing appropriate structures and law to ensure that people’s views are heard and respected.
When I looked at this, I thought of the very old feminist slogan, “the personal is political”. What could be more personal or political than a person having control over the nature of their own death, being able to express their wishes and ensuring that they are heard and recorded.
It is worth saying that I was not able to take part in an earlier debate about the funding for palliative care. We should see much better investment in palliative care in the UK; we should not see volunteers rattling fundraising buckets for hospices to meet their basic needs. But that goes along with the right of individuals to be in control, knowing that they will be heard and listened to, and their wishes acted on. That would allow them to be in a situation of much less fear.
I also want, very briefly, to offer the Green group’s support for Amendment 297. Support for assisted dying is Green Party policy. I want to reflect back to October last year, when the Private Member’s Bill was being debated. There was a very respectful, silent crowd outside, holding up signs saying “Choice, Compassion, Dignity”. I ask people considering this to make sure that those people can be heard in this House and this can be debated.
As the noble Lord, Lord Forsyth, said, it is not about a change in the law; it is about a guarantee of parliamentary consideration, as the courts have requested. It might surprise the noble Lord to know that I preceded him on this. I am trying to remember the details—I was not aware that any fuss had been made about this procedure, but it was either in the Agriculture Bill or the Environment Bill that I put down an amendment in this form. I would not consider myself a procedural innovator, so this is something that has been done many times before.
I want to make one final point. It is perhaps not of legal significance, but, in a way, it is a legal issue. Assisted dying is already available to people in our society—to people who have the funds, the knowledge and the remaining health to get to Dignitas, in Switzerland. This is very much an equalities issue around a right that some people have and some people do not. There is also the fact that, to be guaranteed to be fit to travel, some people are now dying before they need to because we have that inequality.
Baroness Hayter of Kentish Town (Lab)
My Lords, I have added my name to Amendment 297 from the noble Lord, Lord Forsyth. He has made the case, so there is not much more to say. At the core of that amendment, in proposed new subsection (2)(b), all we are asking is
“to enable Parliament to consider the issue.”
That is really all we ask.
We know, as has been said, that the public want change. I believe that the House, at its full strength, wants change. The courts have said that it is not for them, judges, the Crown Prosecution Service, the Law Commission or anyone else to decide. It is the role of Parliament to take a decision of this importance.
By failing to allow a full debate and a decision in Parliament, as the noble Lord, Lord Forsyth, has just said, the Government are effectively siding with those who want no change. That is not a neutral position: it is allowing no change by forbidding those who want to put the issue to Parliament from being able to do that. That is done partly through the number of wrecking amendments that we have seen. I know that the Chief Whip has lots of other demands on his time, but my judgment is that, even if he did not, he would not give time for this—for what would be necessary, given the number of wrecking amendments.
All the Government are doing is accepting, as the noble Baroness, Lady Bennett, has just said, that people with money can go to Switzerland. More importantly, there are no safeguards. Those who oppose assisted dying say that it exposes people to pressure from their families. The whole point of having safeguards is that you will have to go and get permission before it happens, and someone has to test that. At the moment, you can go to Switzerland and there is no check—there is not even a check for whether you are dying. There is no check on whether you are of fit mind; there is no check on whether you are under pressure from a family member. You can just go, if you have the money, but there are no checks. The Government are allowing that to continue: our citizens are able, if they have the money, without any safeguards, to go quite legally to that country and end their lives when they are facing the end of life anyway. That really is not how this country ought to be.
What is important is that we allow Parliament to decide. I can only think that those who have turned up wanting to oppose this are actually afraid that Parliament will decide that it wants change. I often do not like things that Parliament does—unsurprisingly, sitting where I do, on this side of the House—but we are a democratic country and we should let Parliament take the decision on this.
Lord Warner (CB)
My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. This is an unusual position for me; I do not remember in 22 years ever having supported an amendment tabled by the noble Lord. I am beginning my third decade in this House supporting change in the law. Who knows? I may have reached my fourth decade before we have got there.
During this time, I have watched many parts of the English-speaking world use their Parliaments to debate these issues and change their laws. This has now happened in Canada, New Zealand, five Australian states and 10 states in America and the District of Columbia. These changes have not been rushed through; they have been measured, considered and debated, and the populations have been consulted in the way described by the noble Lord, Lord Forsyth. It cannot be said to be right, if we live in a democracy, if the only way forward on an issue that is of great personal concern to many people is having to rely on Private Members’ Bills, which can be treated to wrecking amendments which make it almost impossible to progress a discussion and debate this issue. In the statesman-like way that the noble Lord, Lord Forsyth, has set this out, we should be impressed by the need to facilitate this debate within Parliament, as other countries have managed to do both in the English-speaking world and across Europe. Even countries such as Spain, with strong religious traditions, have allowed this debate to take place and changed their law as a consequence.
At the end of the day, this issue comes down to being a matter of personal choice. It is right that Parliament should be able to debate that issue of personal choice and facilitate the exercising of it by many people who are terminally ill if they wish to do so. They are not forcing anybody else down that path—it is a personal choice; it is a personal decision. Changing the law does not mandate anybody to do this; it is left to the individual, within the safeguards provided for in the legislation, to exercise that personal choice.
I have also added my name to Amendment 203 in the name of the noble Baroness, Lady Meacher. She makes it clear in that amendment that end-of-life issues are a matter of personal choice. We make many speeches in this House about patient choice, so why is it wrong to have more patient choice at the end of life when we have a lot of patient choice during it? We need to focus much more on patient choice. I support Amendment 203 as well as Amendment 297.
Baroness Young of Old Scone (Lab)
My Lords, I think I am about to score a historic double whammy. I thought that I had stayed tonight to let some momentous words cross my lips that I never thought would do so—that is, I agree with everything that the noble Lord, Lord Forsyth has said—but, and I never thought I would say this, I also agree with every word that the noble Lord, Lord Warner, has said. How is that for a double whammy?
I do not want to delay the Committee, because it is late, but let me touch briefly on Amendment 203 in the name of the noble Baroness, Lady Meacher. I sat on the Commission on Assisted Dying, and we heard endlessly and quite heartrendingly from medical professionals, patients and relatives of those who had already passed away about the inadequacies of the discussion about choices at the end of life. At the moment, the legislation makes it almost impossible for healthcare professionals to open up that sort of conversation—we are not talking necessarily about assisted dying; we are talking about any sort of choices at the end of life. The amendment in the name of the noble Baroness is therefore much needed.
However, for heaven’s sake, on Amendment 297, the whole process of Private Members’ Bills is doomed to failure for something as important as this, which has been tackled by legislatures across the world. Yet we are frozen in this grand old Duke of York scenario, where we march up to the top of the hill at Second Reading on a Private Member’s Bill, then absolutely sod all happens after that and we all march back down again. We cannot continue to do that on a five-yearly basis for ever. This is not asking the Government to nail their colours to any particular side of the debate but simply to open up parliamentary time. I very much commend the noble Lord, Lord Forsyth—good grief— on his foresight in seeing this opportunity.
Lord Mackay of Clashfern (Con)
My Lords, your Lordships will know that I have known my noble friend Lord Forsyth as a noble friend and as a friend for many years. I know also that he is extremely good at putting forward a case—whether the case is well founded or not does not seem to matter too much.
We have a procedure in this House, which was established a long time ago, which says that government time is to be used for Bills presented by members of the Government. That is the rule generally. However, there is also a procedure for dealing with Private Members’ Bills. It has been used many times, and it has been used in connection with assisted dying during the present Session. We had a full day of discussion of the merits of that matter—exactly the merits of this matter; the arguments for and against are not for tonight. We are not here to argue for that amount of time; it took a whole day with quite brief statements being made to express different views about this matter.
The Government are a member of those procedures; they are a party to the procedures that deal with Private Members’ Bills. The Government are there so that they can be asked in the course of the proceedings to help. From time to time, they decide that what is in issue is so important generally that it should be given government time. That is the procedure that has been laid down, and as far as I know in this case so far, the Government have not been asked to give time. They said at the end of the debate just two or three weeks ago that they were neutral and waiting for a decision from Parliament. It is Parliament that takes a decision; a Private Member’s Bill is a proceeding in Parliament. It is not just Parliament dealing with government Bills—Parliament deals with Private Members’ Bills also, as well as other kinds of Bills, such as hybrid Bills.
However, this Bill was in Parliament in the Private Member’s Bill system, which is the system that exists just now. If my noble friend, with his skill, wants to suggest a different sort of procedure for Members’ Bills, he can go about it, but to try to break out of the present system a new system for this sort of Private Member’s Bill will produce a complete wreck of the present procedure when no new procedure is being introduced. The Government have from time to time given time for a Bill to be taken forward, which has reached the statute book. That is the procedure which is available now, and it is the proper procedure to ask for.
This procedure is about trying to put an amendment into a health Bill, which has no mention of this, to amend the law on assisted suicide. That is the essence of this—the heading in the amendment is “Assisted dying”—which would mean an unnecessary amendment to the law relating to assisted suicide in his country. There is no question about that. There is nothing about that in the Long Title of the Bill. This Bill is not the proper machinery for raising this matter. It is not my responsibility or an option to deal with the merits of the case. I made a speech in the debate two or three weeks ago towards the end. I think my noble friend was not able to be present, if I remember rightly.
Lord Forsyth of Drumlean (Con)
I was able to be there, but as we got only three minutes to debate it, I did not think it was possible to deal with the very complex issues in that time. My noble and learned friend is making the case against the amendment that it requires the Government to produce a Bill. It does not. It requires them to produce a draft Bill. If my amendment had said that the Government should bring forward their own Bill, then my noble and learned friend would be quite right, but I would not have been able to table such an amendment because it would have been out of order for the reasons he has given.
Lord Mackay of Clashfern (Con)
Exactly. A draft Bill is preliminary to a Bill; it is not there for the purpose of not being considered. A draft Bill is for making a proposal the subject of an ordinary parliamentary Bill, which has the same authority as a government Bill. All Bills are produced in draft; some are considered in draft in pre-legislative scrutiny. A Bill has to be in draft at some stage, but the object of producing this Bill is not that it should remain in draft but that it should be considered. The amendment does not say how long it should be allowed, but that is another matter. The point is that there is already a procedure by which government help can be obtained if it is asked for in the proper situation of Private Members’ Bills.
I think it is wrong in principle to consider the merits of this matter tonight. Some remarks have been made about that, and I refrain from making any remarks about it because I do not think that that is what is needed here. I submit that it is a view well founded on the rules that Private Members’ Bills are drafted by the private Member, are submitted and then are subject to procedure in the Private Members’ Bills system, including if the Government think it is right that they give additional time.
It is also questionable whether this Motion is in order, since the matter has already been discussed in this Session. There is a question about whether having have a separate procedure raising the issue in much the same form as it was considered some weeks ago is in proper order.
But my main point is about the procedure for dealing with Private Members’ Bills in our Parliament—we are not in the Scottish Parliament at the moment, and there may be some question as to whether my noble friend would like to be—and we have to apply the rules in this Parliament. In my submission, applying the rules of this Parliament, if we want help from the Government, it is to be asked for in the Private Members’ Bill procedures and the Government may, for all I know, be prepared to do something along the lines that my noble friend has suggested.
Lord Moylan (Con)
My Lords, I wish primarily to speak to the amendment standing in the name of the noble Baroness, Lady Meacher, but, before I do so, may I just reply, without any hint of rancour, to the comments made by the noble Baroness, Lady Hayter? She repeatedly described the amendments tabled to the Assisted Dying Bill as “wrecking amendments”. Certainly, my amendments are not intended to be wrecking amendments; the Bill raises very important consequences for the National Health Service, and my amendments are primarily about the effect on the relationship between doctors and patients. These are important considerations, and to call them wrecking amendments is a little unfair. I say that without any rancour at all.
Baroness Wheatcroft (CB)
I support both these amendments. I have listened to the noble Lord, Lord Moylan. In answer to his points on Amendment 203, it is highly relevant that organisations such as Marie Curie want this legislation in the Bill. Marie Curie’s nurses work tirelessly to make the end of life as gentle and congenial as possible for so many patients, but if they believe that this would help them, I would certainly support the amendment.
I agree with the noble Baroness, Lady Brinton, that in this country people are too frightened to talk about dying, and that is what we are talking about tonight—and for some it will be painful. Nevertheless, dying is a subject that nurses and those in hospitals should be empowered to feel comfortable discussing with their patients, and Amendment 203 should help with that.
It is with some trepidation that I venture to support Amendment 297, having heard the noble and learned Lord—
Baroness Wheatcroft (CB)
Yes, Lord Mackay. Your Lordships can see how nervous it makes me feel! I think that, in this particular situation, private Members’ Bills have failed, and the Government show absolutely no intention of moving on something that is so crucial to so many people. Although you have to be wary of opinion polls, it seems perfectly clear that opinion in this country has moved and that a majority of people would like not to have assisted dying made mandatory but to have the choice at the end of life of how they say farewell.
Like others, my inbox has been inundated, and I have tried to reply to one or two of those who have been opposed to the proposal from the noble Lord, Lord Forsyth. One doctor, Dr Whitehouse, a palliative care doctor, wrote to tell me that nobody had come to him whom he could not help, and it was very important that everybody should treasure their short remaining time, and palliative care would do that and assisted dying should be resisted. I wrote back to him a week ago through email—he gave me his email address—and said that I wanted to know more. I am a firm believer in palliative care; it works wonders, and it has improved hugely over the years, but I do not believe that it works in every case. I asked him whether it worked, for instance, with motor neurone disease, or whether it could cope with the incontinence which makes the end of life such a discomfort and an indignity for so many people—or did the help that could be provided mean only understanding and care, which does not necessarily deal with the indignity at all? Noble Lords will not be surprised to learn that I have not heard back from Dr Whitehouse, and neither do I expect to.
This matter polarises people, but the amendment is asking merely that Parliament should have the chance to debate a matter that is crucial to parliamentary Members and, more importantly, the constituents who vote for them. I support both amendments.
Baroness Finlay of Llandaff (CB)
My Lords, I declare all my interests in palliative care and as a director of Living Well Dying Well and vice-president of Marie Curie and of Hospice UK. I have two amendments in this group. I do not intend to lay out all the arguments against the amendment proposed by the noble Lord, Lord Forsyth. Indeed, the noble Lord was right that we had only three-minute speeches when we debated the Bill proposed by the noble Baroness, Lady Meacher. However, I remind the Committee that the Bill put forward in the other place by Rob Marris MP actually failed—it was voted out—and it was one that came high in the ballot, so if it had been voted in it would have progressed quite well.
Personally, I do not think this is the place for us to debate assisted dying, which would need a change in the criminal law. The procedural issues have been clearly explained by the noble and learned Lord, Lord Mackay of Clashfern. The noble Lord, Lord Forsyth, spoke about the right to die. I remind him that everybody is going to die—it is an inalienable right. What he is talking about is licensing some people to provide lethal drugs to others, against a set of criteria. I remind him that three-quarters of people in my branch of the profession—specialist palliative medicine—who look after these patients all the time, not only do not want the law to change but do not want anything to do with it in the event it changes.
The claim has been made that palliative care is not a panacea. Assisted dying is not a universal panacea either. There is a 6.9% complication rate in Oregon, which is experimenting with the fourth drug cocktail in seven years. I remind the Committee, because I have made a plea for specialist palliative care, that it is estimated that 118,000 patients each year in the UK cannot access specialist palliative care. That is why I have an amendment tabled to the Bill, which I hope the Government will look favourably on. Areas where assisted dying has happened rank low on end-of-life care compared to the UK. Areas with assisted dying have dropped in the rankings for palliative care since 2015 compared to areas which did not change the law.
Amendment 203 is well intentioned and builds on all the moves for advanced care planning that are spearheaded by specialist palliative care. I know it was drafted originally with Marie Curie’s help, because it initially discussed with me whether I would table it, but I did not and did not sign it for two reasons. First, it is imperative that such conversations begin early, are part of ongoing care and do not become a tick-box exercise which says, “Conversation offered—tick”. That risks all the dangers of what happened with the Liverpool care pathway. Sadly, I have seen all too often a patient being told, “But that’s what you said you wanted”, when their needs have changed. Much research on advanced care planning has been done by my colleagues in my team in Wales. This has now informed some of the moves that are happening. Having open conversations is something that patients want, and the clinicians trained in communication skills want to provide those openings and do.
The second reason that I was concerned about this is that excellent draft guidance on advanced care planning has been developed by NHS England and NHS Improvement, and is near to being published; I had the privilege of being consulted on the final draft. It sets out core principles that such planning must always be a voluntary process and that every effort must be made to help someone express their views and preferences. The person is central to developing and agreeing their advanced care plan with agreed outcomes that are shared in partnership with relevant professionals. They have a record of the shareable plan and are encouraged to review and revise it so that they can change their mind at any time. In addition, anyone involved can speak up if they feel that the principles are not being followed.
The very sensitive approach set out in the guidance recognises that people have different levels of preparedness for such conversations; that their perception of their illness evolves over time; and that, in the crisis of being given a diagnosis or told of disease recurrence, the views that a person expresses may subsequently change as they reframe their experience. The first step is to start with an exploration of how much the person wants to be involved, what matters to them, and the pace and language that matches the person, as well as that they are listened to and understood.
The amendment asks for a “relevant authority” to
“have regard to the needs and preferences recorded … in making decisions about the procurement of services.”
I hope that the Government can see that, by providing specialist palliative care as a core service, the type of bureaucratic delays that would be involved in procuring services would be completely replaced by a rapidly responsive specialist service that can address the person’s needs in all domains. The amendment also uses the term “relevant person”. If it were used as in the Mental Capacity (Amendment) Act, that person could turn out to be the care home manager, who may actually have competing interests and therefore is inappropriate.
A comprehensive survey of over 2,000 people by Cardiff University’s Marie Curie research department reported that people listed their top priorities towards the end of life as timely access to care at 84%, and being surrounded by loved ones at 62%. Being home was a priority for only 24%.
This is a well-intentioned amendment but it has now been replaced by the extensive consideration of the consultation and production of comprehensive guidance.
Lord Flight (Con)
My Lords, I support the amendment of the noble Lord, Lord Forsyth, but was asked at short notice by my noble friend Lord Suri to present his contribution. He makes the point that we humans look after animals and other living creatures with the highest levels of care—
Lord Ashton of Hyde (Con)
The normal convention in this House is that if a Member is not present at the beginning and end of a debate, they should not speak. It is not right to read out someone else’s speech.
The Lord Bishop of Carlisle
My Lords, I recognise and respect the integrity and passion that underlie Amendment 297. However, I rise to agree wholeheartedly and briefly with those noble Lords and noble and learned Lords who have already expressed their significant reservations about it.
There are two problems in particular with that amendment. The first has to do with the many contentious arguments for and against any legislation permitting assisted dying, some of which have already been mentioned. Tempting though it is to rehearse some more of those, I am conscious not only of the time but of the fact that they have already been presented recently and at length, as we have been reminded by the noble and learned Lord, Lord Mackay, at Second Reading of the Assisted Dying Bill here in your Lordships’ House. The ongoing process of that Bill, however slow it may be, should not be undermined. We have also been assured that this is not primarily what Amendment 297 is all about. I might add that the terminology of that amendment is unhelpfully vague. “Vague” is a word that has already been used more than once in the debate today. For instance, we might ask exactly what is meant by “terminally ill” or “medical assistance”.
The second problem, which has already been persuasively argued, concerns the attempted use of this Health and Care Bill potentially, if not directly, to change the law on assisted dying. The proper place for any amendment of this kind should be Committee on the Assisted Dying Bill, not Committee on this Bill, which would be subverted were this amendment to be accepted.
With regard to Amendment 203 in this group, whether or not it is deliberately linked, it is evidently concerned to address the holistic needs of those approaching the end of their lives, and that includes, of course, talking about death. That is something that we would all wish to encourage. However, there is again an issue of vagueness in the amendment, as in Amendment 297. For example,
“wishes and preferences for the end of their life”
could include almost anything, from repeated albeit futile chemotherapy, through bucket list wishes, to assisted suicide. Who decides, and how, that someone lacks capacity for engaging in a conversation about their holistic needs? Who is a “relevant person”, as we have just been reminded by the noble Baroness, Lady Finlay? Then, in proposed new paragraph (c), what does
“having regard to the needs and preferences recorded in such conversations”
actually entail?
Most of what is proposed in the amendment is already covered in End of Life Care for Adults: Service Delivery, NICE guideline NG142, which was published on 16 October 2019. Perhaps it would be simpler just to require healthcare professionals to meet the requirements of that guideline, which would address the heart of the amendment’s stated, and laudable, objective.
Lord Carlile of Berriew (CB)
My Lords, it is a real pleasure to follow the right reverend Prelate and, given the similarity between his see and my name, I hope I may be able to slipstream some of his authority.
I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Moylan, that this is not a debate in which we should be having Second Reading discussions about the principle of assisted dying, and I shall absolutely not do so.
I start by saying a few words about Amendment 203. I was greatly relieved when my noble friend Lady Meacher immediately revealed it to be only a probing amendment, because I had taken the trouble of reading proposed new paragraph (b). This is not the occasion for me to indulge or deploy my inner Rumpole or Henry Cecil by telling your Lordships stories of frauds committed on families by greedy relatives and the like—although there are many to be found in the annals of the criminal courts, even from the time when I practised in north Wales. However, the words “another relevant person” are an absolute recipe for undue influence and ostensible but completely fraudulent carers. I am very surprised that my noble friend, for whom I have enormous respect, thought it right to present such a vague piece of drafting to the House on this occasion.
I am very concerned in relation to both Amendment 203 and Amendment 297 about parliamentary procedure and statutory integrity. I have huge regard for the noble Lord, Lord Forsyth, who is one of our very greatest debaters in this House, and so I listened to him with great care. It has been an unusual occasion to hear him relying on a Liberal Democrat Peer in Scotland and the Scottish Parliament. I am not sure that I have heard him deploy that juxtaposition before—and I am pleased to see that he sees the funny side of that himself. However, I beg him, before Report, to consider whether he has got his concept right or wrong, for I would say that, conceptually, what he proposes is wrong.
I do not want to repeat what was said so clearly by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Moylan—it does not need to be repeated, and I would diminish it if I tried to—but there are a couple of points to add. One was alluded to very graphically by the noble Lord, Lord Moylan. If, as a rule, one could table an amendment simply saying that the Government—or anyone else, for that matter, as the noble Lord suggested—should present a draft Bill to Parliament, it would be impossible to control. Reference was made to the 200 amendments tabled to the absolutely extant Bill of the noble Baroness, Lady Meacher—it is a living Bill and it can still be debated. It is extremely unfair to suggest, as one noble Baroness did, that those were wrecking amendments. Some of them may be, but the great majority of them are substantive amendments seeking to safeguard vulnerable people. That is one of the things that the private Members’ procedure is for. When a private Member presents a Bill to Parliament—and many have passed; it is not a futile gesture—it has to withstand the same parliamentary scrutiny that we give to the Government when they present Bills before Parliament, such as the police Bill, debates on which a number of us here have been taking part in recently.
Furthermore, let us suppose that the clause from the noble Lord, Lord Forsyth, was passed and that within the 12 months that followed the Government decided not to present a draft Bill to Parliament. I do not believe—though I may be disabused of this by greater judicial minds than mine—that the court would have the power, other than possibly to advise, to order the Government to present such a Bill to Parliament, because that would be a breach of the separation of powers. I do not believe that any judge, other than in a nightmare, would see themselves doing that.
Lord Carlile of Berriew (CB)
I will give way at the end of this sentence. It seems to me that what the noble Lord, Lord Forsyth, is proposing is simply not going to be effective, so what on earth is the point of presenting it?
Lord Forsyth of Drumlean (Con)
I rise with some trepidation to take on the noble Lord, Lord Carlile, but could he just reference the point that I made that my amendment does not seek for the Government to produce a Bill? It is a draft Bill. There is no compulsion on the Government to give it time or anything else, and therefore no notion that one would go to the courts. What I am trying to do here is break the logjam. It is completely disingenuous to suggest that we have a Bill before us; we all know that that Bill is going absolutely nowhere, like all its predecessors.
Lord Carlile of Berriew (CB)
The noble Lord is trespassing on the old Social Democratic Party by using words like disingenuous. I will give him an example: some years ago, I chaired a Joint Select Committee of both Houses of Parliament dealing with the draft Mental Health Bill. That particular Bill was never enacted after our year of meetings and the report that we produced, but there was not a single person or NGO—including some that have been mentioned today—that did not believe that it was a parliamentary Bill. A Bill is a Bill is a Bill. In this Parliament we have draft Bills but not half Bills. That is my answer to the noble Lord.
I do not want to take up more time. I finish by saying that I think this is a completely misconceived proposal, both procedurally and, were we to come to it, on the merits.
Baroness Smith of Newnham (LD)
My Lords, I shall speak to both amendments but I shall speak first to Amendment 203, which, on the face of it, I am minded to support.
My reason for that—I hope this is not seen as a Second Reading speech—is that two years ago, just before Christmas, my mother contacted me and said she thought she had terminal cancer. She was taken to hospital two weeks before Christmas and died on Boxing Day, not of terminal cancer but of end-of-life COPD. I had no idea that she had end-of-life COPD, although I knew she had COPD. On Christmas morning, I was summoned to the hospital, and a junior doctor asked me what I wanted to do: “Your mother’s been a bit unconscious. What do you want us to do? Do you want us to wake her up? Do you want us to do anything?” That is not really the best conversation to have. The next morning, Boxing Day, I had almost exactly the same telephone call: “Please come to the hospital, your mother is very ill.” I said that I had had the same conversation yesterday. However, on this occasion I was summoned in and met a doctor who spoke to me with compassion. My father and I agreed that my mother should not be resuscitated. I had never had that conversation with her, but, when I went through her things, I discovered that she had completed a form that said: “End-of-life COPD. When in doubt, do not resuscitate.”
So, in many ways the amendment in the name of the noble Baroness, Lady Meacher, is very attractive because it is surely right that, towards the end of their lives, people talk about what is appropriate.
Baroness Meacher (CB)
It might help the Committee if I make clear that, as I understand it, all our Fridays are taken up, because people are talking so long on all these Bills that we are having to use Fridays for government business, and also there are lots of Private Members’ Bills with Second Readings to come. So my understanding is that we have done what we can do with my Bill.
Baroness Smith of Newnham (LD)
My Lords, perhaps the Minister, in replying, can tell the Committee whether he will talk to the usual channels, especially since I note that the Chief Whip and the Deputy Leader are both in their places, about whether time could be made available for further discussion of the Bill that is extant. Because whatever the merits or demerits of assisted dying, this is not the Bill for such an amendment.
Lord Ashton of Hyde (Con)
My Lords, the noble Baroness, Lady Grey-Thompson, has been trying to get in for a while.
Baroness Grey-Thompson (CB)
My Lords, I want to react very briefly to one comment that has been made in debate tonight, which is the issue flagged by my noble friend Lady Wheatcroft. It is something that is continually raised in the wider debate on assisted dying and it is the issue of incontinence being seen as so inherently tragic that people should use it as a reason to want to end their lives. It is considered an important subject; we have an all-party group on it.
Personally, I find it really difficult because I am incontinent and I have never once felt undignified by it. I cannot believe that I am the only person in the House, or, indeed, in the Chamber tonight, who is incontinent and I will happily discuss the many solutions for sorting out this problem. What I see is that people are scared to talk about it, because they think it is something that we should never discuss. I have many solutions for this. I intermittently catheterise; I use indwelling catheters; I have lots of options available to me if those do not work—medication and lots of options on surgery. There is nothing undignified about being incontinent if we support it properly.
Lord Aberdare (CB)
My Lords, both these amendments reflect a desire to give people a greater say over the final weeks of their lives. As a strong believer in patient choice, which is, after all, a very central part of this Bill, I am greatly attracted by and supportive of my noble friend’s Amendment 203.
As several noble Lords have said, we are not very good at thinking about, planning for and managing death, despite Benjamin Franklin’s observation that it is one of only two certainties in this world, along with taxes. This amendment would give people diagnosed with a terminal illness the possibility of some degree of agency in their final days. That seems to me a wonderful idea, but it does of course raise questions about who such discussions would be with, and what qualifications might be needed by the people offering them. So, while I support the amendment, I would want to know more about the practicalities of delivering it, hopefully without having to create a whole new regulated profession of mortality consultants. I hope therefore that the Minister will respond positively to my noble friend’s suggestion of discussions on how the amendment might work; I will be interested to hear his response.
On Amendment 297, which I also support, I make only two brief points. First, I very much agree with what everybody has said that tonight is not the time to be discussing the merits of assisted dying; that is not what this amendment is about. Many Members on both sides of the argument have made it clear that Parliament needs to decide this issue, and the amendment from the noble Lord, Lord Forsyth, seeks to find a way of making that possible. I feel the same sort of alarm as my noble friend Lady Wheatcroft in finding myself on the opposite side to that of the noble and learned Lord, Lord Mackay, but, with the greatest respect, I think he himself said we were waiting for a decision from Parliament before the Government could act on this. In that case, there has to be some way or process for making such a decision happen. That is exactly what the noble Lord, Lord Forsyth, is trying to produce with this amendment. No doubt there are ways of improving how that is done, maybe by giving more time to my noble friend Lady Meacher’s Bill. This responsibility is Parliament’s to resolve, and I cannot believe that, in this great Parliament, we cannot find a way of doing it.
Baroness Fraser of Craigmaddie (Con)
My Lords, I rise partly because my noble friend Lord Forsyth referred to me earlier and partly because I wanted to clarify what is happening in the Scottish Parliament. There is not actually a Bill in front of the Scottish Parliament. The Orkney MSP, Liam McArthur, carried out a consultation which was very wide-ranging and closed only at the very end of December. Liam McArthur has reported that the submissions to his consultation were wide-ranging and unprecedented, and I look forward with great interest to reading some of them. You can look some of them up. I commend the Scottish Partnership for Palliative Care’s website; its submission is published there. The Neurological Alliance of Scotland also published a submission—I declare an interest because I am a trustee of the latter.
Both those submissions illustrate that this is a very complicated issue, as noble Lords have acknowledged, and there are many things that need evening out before we even get to potentially having draft legislation—a Bill or whatever it is; I am still learning parliamentary procedure. I find it interesting that my noble friend Lord Forsyth mentions that there might be a majority for assisted dying in the Scottish Parliament. I remind him that there is currently a majority for independence in the Scottish Parliament, but that does not mean that the people of Scotland want independence.
In my short time in this House, I have seen many amendments that may have been worthy in their own right but were in the wrong place in the wrong Bill. I think Amendment 297 in the name of my noble friend—I feel very nervous suggesting this to such an esteemed colleague—may possibly be the wrong amendment in the wrong Bill.
Baroness Walmsley (LD)
My Lords, I rise to speak on my own behalf; I am not representing anybody. The substantive issue is a conscience issue. I do, however, support the amendment in the name of the noble Lord, Lord Forsyth, because I think it is a discussion whose time has come. I am very impressed and pleased that noble Lords have resisted the temptation to discuss the substantive issue this evening, because all of us here understand—unfortunately, many outside do not—that this amendment is not about the substantive issue.
However, I am somewhat disappointed that the noble and learned Lord, Lord Mackay of Clashfern, wishes to knock it out on a procedural point. I think it is much more important than that. The noble and learned Lord is a wily old politician, and he knows very well that if you want to defeat something, it is often a very good idea to try to get rid of it on a procedural point. He suggested that we should use the Private Member’s Bill procedure. He has been in this House long enough to know that very few Private Members’ Bills are taken up by the Government and given time, and if they are not given time, they are going nowhere. But it is clear that this country wishes to discuss the matter and have Parliament decide on it.
The noble Lord, Lord Moylan, suggested that we cannot put anything in the Bill that the Government do not want to do. I remind him that every time we defeat the Government on an amendment, we are asking them to do something they do not want to do—and we did it 14 times last week on the policing Bill.
I have one other point. The right reverend Prelate the Bishop of Carlisle talked about vagueness. I think the noble Lord, Lord Forsyth, has been deliberately vague, because it is for the draft Bill to be specific. That is important because we need something very specific to discuss, with specific powers and safeguards that Parliament has put in. Without that, we would have all the fear that we have around the country, much of which has been expressed in our inboxes in these last few weeks. People are afraid of what might be in the Bill and what Parliament might pass, and only if we have a specific set of proposals in front of us can we amend it to put in the proper safeguards. Parliament can then decide, and people can take their view about it. I think that will take away a lot of the fears of people who believe that there will be no safeguards, because I am convinced that this Parliament would put in proper safeguards. If it did not, a lot of noble Lords would suggest some that jolly well should be there, and rightly so. For those reasons, I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth.
On the amendment in the name of the noble Baroness, Lady Meacher, again, I am so glad that she said it is a probing amendment, because other noble Lords have suggested that the drafting would need to be changed to avoid some unintended consequences. I am quite sure that the noble Baroness would do that if it was more than a probing amendment. She is asking for something that patients need: choice at the end of life. I hear what the noble Baroness, Lady Finlay, said about what is already in place. She is an expert on this. It could well be that a conversation needs to be had about whether there needs to be anything further in legislation to strengthen the availability of what the noble Baroness, Lady Finlay, talked about, which sounds absolutely excellent. So I am not expressing a definite opinion on that amendment.
I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth, because we, as practical politicians, know that in the real world—in this Parliament—the Bill brought forward by the noble Baroness, Lady Meacher, is not going anywhere, but we need to have the discussion.
Baroness Stroud (Con)
My Lords, I believe it is really important to understand what Amendment 297 does and does not do. It is my understanding that this amendment instructs the Secretary of State—not Parliament—to lay before Parliament a draft Bill that would permit terminally ill, mentally competent adults legally to end their own lives with medical assistance. I listened carefully to my noble friend’s speech on the matter just before Christmas, and I hugely empathise with his own personal journey. But it is important for us to understand what this amendment actually does and does not do.
Lord Bethell (Con)
My Lords, I would like to speak in support of Amendment 297 from my noble friend Lord Forsyth and specifically address the issue of timing that the amendment refers to:
“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill,”
and so on. I feel competent to address this point because I was asked myself, when I was Minister, whether the Government should support a debate with a Government-supported Bill on this issue. There were five conclusions that I reached during my thoughts on the matter.
The first was that a Private Member’s Bill, however worthy, was just not going to get across the Table. It was like a soggy piece of spaghetti—very difficult to push across. This issue is very complex, and a large amount of consultation is needed, quite rightly on such a delicate issue, that only a Government can engage in. PMBs may be all right for cosmetic fillers, but not for assisted dying.
Secondly, on soundings with the professions, there was clearly a massive change in the sentiments of the medical professions, and the appetite and desire for reform was profound, among both the membership and the leadership. That was something we had to take account of.
Thirdly, reform in like-minded countries such as Canada, New Zealand and even Ireland had changed the international context for this issue. We cannot duck the fact that Britain is actually behind the curve on this matter.
Fourthly, public opinion has moved a long way on this. The noble Baroness, Lady Wheatcroft, referred to this.
Lastly, there was a large amount of interest, privately, among parliamentary colleagues in engaging on this subject, particularly among those who were not necessarily highly focused on the issue.
My conclusion was that the time was right to have this debate. My message to the Minister is that it is right that the inconsistencies and delicacies of this issue are tackled by the Government and soon. In the phrase of TS Eliot in “The Waste Land”:
“HURRY UP PLEASE ITS TIME”.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I rise to make just a short contribution. I listened carefully to the words of the noble Lord, Lord Forsyth, for whom I have great personal respect. I watched him in another place and saw his great ability in debate, and I have no doubt whatever that he has much to contribute to the debates here in this House and will do so in the future. However, I have to say that I profoundly disagree with him in this case.
The noble Lord said that he had changed his mind on assisted suicide. He mentioned personal circumstances within the family and then he said that he thought about his own personal circumstances if he were in that position. I do not believe that that is the best way to bring legislation forward, based on your own personal circumstances; you are therefore bringing legislation in for the whole country to meet your own personal circumstances. I have empathy with him and understand the personal circumstances he has had to face.
I say to the noble Lord that I come from a different perspective. I have personal experience of the awful pain of the suicide of a loved one. I know what it is for a family member to come to their wits’ end because of their personal circumstances, where cancer had ravaged the whole family circle, even taking a little child of four, and they could not face life any more. Were they terminally ill? I tell your Lordships, they had died within because of their circumstances. Were they mentally competent to make a decision? They made a decision, and I am sad to say that the rest of the family circle has had to live with that awful pain within their hearts.
This is not an easy situation. I understand that we say that we are not talking about the particulars of a Bill, but this amendment says:
“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill to permit terminally ill, mentally competent adults legally to end their own lives with medical assistance.”
That is certainly assisted suicide. I heard other noble Lords saying that this was simply asking for parliamentary time to have a debate. We had a long debate in this House on the Bill in the name of the noble Baroness, Lady Meacher, which is in fact progressing.
I notice that the noble Lord is shaking his head. I have to ask this question. Numerous Private Members’ Bills are going through this House and are progressing, perhaps at a slow speed. Why is this one different from the others? Do we ask the Government simply to pick this one out and forget about all the rest, or are we saying that they should do it in a timely fashion? Let the Government give this special time to those that are already in that process, and when it comes to the Bill in the name of the noble Baroness, Lady Meacher, time can be given for that to progress and to provide a Bill.
Over these past two years this whole nation has been fighting to save life, not take it. We have spent billions of pounds in trying to do that and I pay tribute to the health service for all its efforts. An assisted suicide law, however well intended, would alter society’s attitude towards the elderly, the seriously ill and the disabled, sending a message that assisted suicide is an option that they ought to consider. Society should not allow a double standard in allowing some people an assisted suicide while we do all we can to prevent young people and other vulnerable groups committing suicide—
Lord Warner (CB)
I am sorry to interrupt the noble Lord but is he aware that in all the countries I cited in my speech, parliaments played a facilitating role in changing the law and consulting their citizens on these kinds of changes? Is it not a bit strange that so many English-speaking and non-English-speaking democracies that we all respect managed to go down that path with the help and facilitation of their own parliaments?
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, there is a process that the noble and learned Lord, Lord Mackay, outlined tonight for how this issue could proceed. I believe we should bow to his legal and learned knowledge concerning this matter.
I think society should give everything financially and provide palliative care to those who are in need at the end of life. I trust and pray that this House will send a clear message that we will do everything to ensure people live with decency and honour rather than telling them that we will help them to die.
Baroness Merron (Lab)
My Lords, this debate has probably exposed more that is not resolved rather than what is resolved. Having listened very closely to the passionate, informed and often personal contributions from noble Lords this evening, I feel there was some inevitability that that is where this debate would lie.
I want to touch on the two amendments before us. I am grateful to the noble Baroness, Lady Meacher, for clarifying that Amendment 203 is a probing amendment. I am reminded of when we debated these issues in the previous group where your Lordships’ House had great regard for ensuring that a patient’s final wishes should be respected as a kindness. This allows respect and dignity but is also practical in respect of reducing unplanned hospital admissions and other interventions.
There may well be merit in further consideration of the sentiments in the noble Baroness’s amendment that patients should have the opportunity for meaningful conversation about what matters most to them at the end of their life. Of course, the noble Lord, Lord Carlile, is also right about ensuring protection for those who are more vulnerable, and I am sure that, in the course of further discussions, those considerations will be made.
With regard to Amendment 297 put forward by the noble Lord, Lord Forsyth, obviously your Lordships’ House has heard, as I have, the depth and range of concerns and opinions across this issue. Such an important legislative change as proposed in this amendment would need to be its own topic, in its own Bill. I do not feel that any steps towards such a monumental change should be added via an amendment to a Bill that concerns itself entirely with other matters, as does this Bill.
In conclusion, whatever the views of noble Lords on assisted dying and however strongly held those views are, I believe that your Lordships’ House should do justice to it but that this Bill does not provide that opportunity.
Lord Kamall (Con)
My Lords, this has been a fascinating discussion and debate. I recall watching the debate on the Private Member’s Bill of the noble Baroness, Lady Meacher, a few weeks ago; I remember thinking that that was Parliament at its best. The arguments on both sides are fascinating—thank goodness I was not the Minister responding.
I thank my noble friend Lord Forsyth for assuring me today that we were not going to re-open the whole issue but talk only about the merits of the noble Lord’s amendment. Before I turn to his amendment, I will start with Amendment 203 tabled by the noble Baroness, Lady Meacher.
It is incredibly important that everyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for future care, so that these can be taken fully into account. There is ongoing work across the health and care system, as the noble Baroness, Lady Finlay, alluded to, to support this aim, including a commitment within the NHS Long Term Plan to provide more personalised care at end of life, and a recently updated quality statement from NICE on advanced care planning. In addition, we have established the ministerial oversight group on Do Not Attempt Cardiopulmonary Resuscitation, following the CQC’s review of this during the Covid-19 pandemic. This group is developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. We believe that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. However, I do not feel it is appropriate to specify the level of detail included in Amendment 203 in the Bill, and I hope the noble Baroness, Lady Meacher, will consider withdrawing her amendment.
Let us now turn to the amendment that has been much discussed. As many noble Lords have rightly said, it is a long-standing position that any change to the law on assisted dying is a matter for Parliament to decide, rather than one for government policy. Assisted dying remains a matter of individual conscience, on which there are deeply held and very sincere views on all sides. Sometimes these are informed by one’s own experience of family members; other times, these are informed by one’s faith. You can rationalise it, or argue, but people have very strong feelings on both sides.
Noble Lords are aware of the Private Member’s Bill of the noble Baroness, Lady Meacher, on this subject, and we look forward to further debate in Committee when parliamentary time allows. I will commit to discussing this with the Chief Whip, given the request that was made. But as this matter is so important and is a matter of conscience, we cannot take a partisan position. If the will of Parliament is that the law on assisted suicide should change, the Government would not stand in the way of such change but would seek to ensure that the law could be enforced in the way that Parliament intended.
Lord Forsyth of Drumlean (Con)
I am most grateful to my noble friend. Could he just clarify what he said? Did he say that there was a possibility that time would be made available for the Bill of the noble Baroness, Lady Meacher?
Lord Kamall (Con)
I am afraid that I cannot give that guarantee. I will commit to speak to the Chief Whip about whether time could be made available.
Lord Kamall (Con)
I was not expecting that reaction.
On Amendment 297, it would not be appropriate to include a commitment to bring forward new primary legislation in the Bill. Future Bills and the use of parliamentary time are decisions that are rightly made via other avenues. As I said, I will commit to speak to the Chief Whip—he is not very far from me at the moment.
A number of noble Lords spoke about definitions. It seems that tonight we have challenged the definition of “neutral”. I was told that if I did not support this amendment, it would not be a neutral position. Given that those who spoke in favour of the amendment tend on the whole to be in favour of assisted dying, would it be a neutral position if I supported it? Therefore, have we now got a subjective understanding of neutrality or, as I said in my PhD viva, a subjective view of objectivity?
For all these reasons, I ask the noble Lord to consider not moving his amendment, but I fully expect him to come back to it in future.
Baroness Meacher (CB)
My Lords, I thank the noble Lord, Lord Forsyth, for tabling his amendment. I was asked by other noble Lords to make it absolutely clear, and I have no problem with this, that I fully and strongly support his amendment. I did not speak to it because of time.
I thank a lot of noble Lords for being very good this evening about not addressing the great issue of assisted dying, because that would have been entirely inappropriate. Many noble Lords have been careful not to do that, so I am grateful to them. I am also grateful to the many noble Lords who have made clear their support in particular for Amendment 297. I was very clear about my own amendment; it is a probing amendment. I thank the Minister for his response and the Chief Whip for placing this at the very end of the day so that we did not spend 12 hours on it—I think we can all be grateful for that. I thank all noble Lords here tonight. I beg leave to withdraw the amendment.
Lord Forsyth of Drumlean (Con)
My Lords, it is late. Tempted as I am to respond to all the arguments that have been put—I have some extensive notes here—I want to make just two points.
First, on the procedural arguments that have been put, if the amendment was not in order, it would not have been allowed to be put on the Marshalled List. Had the clerks advised me that there was any constitutional or procedural problem with the amendment, of course I would not have tabled it—a tradition which I hope will be maintained in this House. All these arguments about procedure—people can think it is not the right thing to do, but ultimately it is for the House to decide. I am most grateful to my noble friend the Minister; I suspect the Chief Whip will not be as accommodating as he might have hoped when he has his conversation with him.
The Minister made the point that many of the people who supported my amendment had a particular view on this issue, but it is important to point out that all those who sought procedural reasons for why it would be inappropriate also have a particular point of view. That is why we need a proper debate.
On the Private Member’s Bill of the noble Baroness, Lady Meacher, the most disingenuous argument has been that which says, “Well, we’ve got a Bill before us”, when there is not time even for a Committee stage and there are some 200 amendments. It is well-trodden path.
I shall not say any more other than that if I wanted to summarise succinctly, I would probably have said everything that the noble Baroness, Lady Walmsley, said. Not only is this the first occasion that I have praised the Scottish Parliament to the skies but it is the first occasion that I have relied on a Liberal to put into words what I feel about an issue. The Committee should also take notice of what my noble friend Lord Bethell, who was the Minister, had to say. He said that he would like to have done this as a Minister. I do not know whether my noble friend wants to change places with him again so that he can come back and make it happen. It is wonderful how when one is no longer in government one is able to say all kinds of things one was not able to say in government.
On the basis that I believe that this matter needs to be decided by the House, I shall consider the points that have been made and come back to it on Report, but I think that I will want at that stage to test the opinion of the House.
Lord Ashton of Hyde (Con)
My Lords, I have got up twice today to ask people to be succinct. Front Benches and Back Benches have been very good at that, so I want to say thank you very much. I am very grateful.