Health and Care Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

There is lots more that I could say—I was going to repeat some of the words of the noble Lord, Lord Ahmad —but we have had a very strong debate and there is a clear view across the House that this is not a partisan issue. Once again, the noble Lord, Lord Blencathra, is absolutely right. I will back him on this amendment, and let us ensure that the Government keep their word.

[Earl Howe (Con)]

My Lords, I am grateful to my noble friend for enabling us to debate the serious and important issue of ensuring that health service procurement and supply chains are consistent with the United Kingdom’s international obligations. I have listened very carefully to the contributions from all noble Lords who have spoken.

I begin by making clear what the regulation-making power under Clause 70 is designed to do, and not do. The Clause 70 power is limited in scope to healthcare services and, with the exception of some mixed procurements, will not extend to the procurement of goods. The vast majority of healthcare services procured by the NHS are provided by domestic suppliers or, indeed, by the NHS itself.

However, there is a wider point to address in response to the contributions of noble Lords. As a party to the Convention on the Prevention and Punishment of the Crime of Genocide, the UK is fully committed to the prevention and punishment of genocide as appropriate under the convention. Indeed, the UK is active in fulfilling its duties under the genocide convention. Given that the majority of mass atrocities occur in and around conflict, the Government believe that a focus on conflict prevention is the best means to prevent most mass atrocities. To that end, this Government adopt a consolidated, whole-of-government effort using our diplomatic, development, defence and law-enforcement capabilities to help find pathways to global peace and stability.

As my noble friend is well aware, it is the long-standing policy of the Government that any judgment as to whether genocide has occurred is a matter for a competent national or international court, rather than for Governments or non-judicial bodies. It should be decided after consideration of all the evidence available in the context of a credible judicial process.

Having said that, our policy on genocide determination does not prevent us taking robust action to address serious violations of human rights. The Government are clear that they expect all UK businesses to respect human rights throughout their operations, in line with the UN’s Guiding Principles on Business and Human Rights. In response to the guidelines, the UK is proud to be the first state to produce a national action plan, and we continue to develop our approach in line with the Modern Slavery Act 2015. Section 54 places a requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement setting out the steps they have taken to prevent modern slavery in their operations and supply chains.

Following a public consultation, the Government committed to a package of measures to strengthen our transparency in supply chain requirements. This includes extending the reporting requirements to public bodies with a budget of £36 million or more to create public and private sector parity. The Government have led the way in this endeavour and, in 2020, the UK became the first country in the world to publish a government modern slavery statement, setting out the steps we have taken to identify and prevent modern slavery in our own supply chains. The noble Lord, Lord Collins, indicated that he had not seen evidence of action in this area. In November 2021, we published a progress report on how we have met the ambitious goals set out in that statement and, at the same time, each UK ministerial government department voluntarily published their first annual modern slavery statement. As the noble Lord mentioned, the FCDO and the Cabinet Office are also working together to introduce new guidance to UK government bodies to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. Further detailed guidance is being developed that will be mandatory for government contracting authorities.

The UK’s G7 presidency demonstrated how we are revitalising G7 co-operation to tackle the most pressing global challenges. At the meeting in Carbis Bay, in June 2021, G7 leaders reaffirmed their commitment to uphold human rights and committed to prevent, identify and eliminate forced labour in global supply chains. This was followed up by the G7 Trade Ministers’ meeting in October, building on those commitments to eradicate forced labour, protect victims and improve global supply chain transparency, including by upholding international labour standards in their own business operations and procurement policies. This is one of a number of recent, clear demonstrations of our continued leadership and commitment to ending human rights abuses in global supply chains.

The noble Baroness, Lady Brinton, indicated that she did not think that the Department of Health and Social Care in particular was doing enough in this area, but if we look at the health service specifically, we see that the Department for Health and Social Care published a statement in October 2021 explaining the steps it has taken to identify, prevent and mitigate modern slavery within its own operations and supply chains for all goods and services that it procures. This aligns with the Cabinet Office guidance advising public sector contracting authorities on how to assess suppliers in terms of mitigating the risk of modern slavery. Contracts are normally placed in line with the department’s terms and conditions, which include clauses requiring good industry practice to ensure that there is no slavery or human trafficking in supply chains.

My noble friend also asked why the 2021 modern slavery statement did not cover the Vaccine Taskforce, PPE, UKHSA—formerly Public Health England—or test and trace contracts. Some indication of preventive steps taken in relation to these areas were included in the statement, and, as was outlined later in that statement, all areas will be covered in 2022 statements.

My noble friend, and the noble Baronesses, Lady Brinton, Lady Harris and Lady Kennedy, the noble Lords, Lord Alton, Lord Collins and Lord hunt, my noble friends Lady Hodgson and Lady Sugg, and others, raised issues about Xinjiang, in particular. The Government have taken robust measures in respect of UK supply chains. We have introduced new guidance for UK businesses on the risks of doing business in Xinjiang, supported by a programme of ministerial engagement, and we have announced enhanced export controls, as well as the introduction of financial penalties under the Modern Slavery Act. Taken together, these measures will help to ensure that no British organisations —government or private sector, deliberately or inadvertently—are profiting from or contributing to human rights violations against the Uighurs or other minorities.

I am conscious that the noble Lord, Lord Alton, asked me a series of questions. If he will allow me, I will write to him on those that I am unable to answer today. The same applies to the points raised by the noble Lord, Lord Rooker, to whom I listened with great care.

For the multiple reasons that I have set out, I cannot accept my noble friend’s amendment. I hope, nevertheless, that I have been informative, and that he will have derived at least some reassurance from what I have said about the seriousness with which the Government view the issues around human rights violations, and the actions that we are taking.

[Lord Blencathra (Con)]

My Lords, I am grateful to every noble Lord and noble Baroness who has taken part in the debate, every single one of whom spoke in favour of the amendment, apart from my noble friend Lord Howe—I perfectly understand that he had to adhere to the DHSC brief. I am certain that, if every other noble Lord were to speak in the debate, each one would support the amendment as well.

I am grateful for the particularly powerful speech of the noble Lord, Lord Rooker, on determining the provenance of goods. Just as an aside, I can tell the House that, before Christmas, I thought I would impress my wife by trying to buy a couple of Oxford pillowslips myself, without troubling her. I wanted something with a thread count of over 400—for my delicate little skin, of course—and it took me hours and hours on the web to try to find a supplier among the major retailers that could guarantee that it would not be from Xinjiang province. I ended up contacting one supplier and asking, and three weeks later it replied by email guaranteeing me that the cotton was not from Xinjiang. I bought the pillowslips, and I still do not know whether or not I have been sold a pup—but they are quite nice against the skin. The noble Lord is right: we can tackle this problem only if we can trace provenance, and using DNA or other scientific evidence may be the best way to do that.

I do not want to go down the route of criticising some of the initial contracts that the Government entered into, as some noble Lords have done. There is no doubt about it: we were ripped off by some of them, we bought some duff equipment, and there will have been some dodgy contracts. But I remember that, at the time, every medic was calling out, “Get us PPE from wherever you can!” The whole world was scrabbling to get PPE. If your house is on fire, you do not spend ages on the web trying to find the cheapest fire bucket; you buy whatever you can. So I do not want to spend time on whether those contracts were value for money; that is for another day.

Someone asked: when did genocide start? I recall that the noble Lord, Lord Adonis, who was in the Chamber briefly, made a powerful speech a few months ago, saying that when genocide was happening, the whole world noticed that it was happening but did nothing about it, and then afterwards said that it must not happen again. We knew that Jews were being exterminated, and after 6 million were killed we said, “It must never happen again”. We knew what Pol Pot was doing, and afterwards we said, “It must never happen again”. We knew what Stalin was doing, and afterwards we said, “We must never let it happen again”. Then there was Srebrenica, and afterwards we said, “We must never let it happen again”. We know that genocide is taking place in Xinjiang province, yet we are just putting in place systems that may, one day, eventually, stop us trading with some of the people there who are committing genocide. That is not good enough. We must act faster than that.

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[Baroness Walmsley (LD)]

My Lords, if the noble Baroness, Lady Pitkeathley, is the general, we are all her foot soldiers. There have been some excellent speeches. In particular, the noble Baroness outlined for us what are, I hope, the unintended consequences of what the Government are doing in their proposals about discharge to assess. It does not seem right that it is up to this House to put back the rights and abilities of carers to do their caring without too much impact on themselves. I hope the Minister heard what the noble Baroness, Lady Pitkeathley, and others, such as the noble Lord, Lord Warner, said about that. We heard from the noble Baroness, Lady Hollins, how much worse the situation has been for so many carers—in particular those who care for people with learning disabilities or mental health problems—during the pandemic, when, unfortunately, it was necessary to withdraw certain services that they normally rely upon. I hope that, when we have heard the Minister’s response, we can come back to Clause 80 on Report if we are not satisfied with the Government’s response, because the situation is not good, even now.

I am grateful to Carers UK and Barnardo’s, which have given us some dreadful horror stories about the situation of carers when the person they care for is being discharged from hospital. One of the worst that I read about was when the carer was only told when the person being discharged was actually in the ambulance on the way home. They had to run around trying to get a commode, which that person would certainly need when they got home. The situation is so much worse for a young carer who does not necessarily know their way around the system in the same way that an adult carer might. Although I support all the amendments in this group, that is why I added my name to Amendment 269 in the name of the noble Lord, Lord Young of Cookham. It is all about the need to identify and ensure appropriate support for young carers before a patient leaves hospital. I really take on board my noble friend Lord Scriven’s view that you should not do it at the end of the stay in hospital: you should start thinking about it when the person goes into hospital.

Caring for a sick or disabled person, no matter how strong the bonds of love, is a difficult and exhausting challenge. It is hard enough for adults, the majority of whom, as we have heard from my noble friend Lady Tyler, are women; we have heard about the effects on their finances and pensions. Many adults do not feel equipped to do it adequately, and it is even harder for children. How can a child be expected to have the knowledge and skills needed to care adequately for an adult and, at the same time, benefit from education and prepare for their own future life?

We know that circumstances sometimes put children in this position, but it is essential that public services provide as much support as possible. However, we know that, although it is estimated that there might be around 800,000 young carers in the whole of the UK, sometimes even their school does not know who they are. In some cases, the young carers themselves prefer it that way, because they see it as a stigma or something that their friends might not quite understand; but it does mean, of course, that they do not get the help that they need, and neither does the person being cared for.

I agree with the noble Baroness, Lady Wheeler, that a proper assessment must be done either before the patient leaves hospital or very promptly post discharge. I hear all the problems about that; yet, carers, according to an ONS report in 2017, save the state more than £60 billion every year, which is more than is spent on formal caring—although it is not clear how much of that is saved by young carers. On the other hand, it has been assessed that a family with a young carer has an income, on average, £5,000 a year lower than other families—so these families are often poor too.

Local authorities already have considerable duties relating to identifying, assessing and supporting young carers, and we have heard of at least two very good schemes. Many of them do it very well, despite the fact that some of these young people are hard to find. However, it is essential that some duties also apply to the NHS, and they must not be lost in the move to integrated care systems. Adequate focus must be placed on these duties by the ICB having a rigorous system or framework to ensure a process for assessment. As my noble friend Lord Scriven pointed out, this is step one in ensuring that needs are subsequently met.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. We are looking to move towards a more integrated care system for precisely some of the reasons that noble Lords have laid out: that a patient is discharged by a hospital but it is not done in an integrated way. As the noble Baroness, Lady Wheeler, said, during the pandemic local authorities and the NHS developed innovative ways to support better discharge from hospital to community care, and what we want to see is discharge to assess as one model. In some cases, it might be the best model: for example, where people are over the age of 80, the longer they stay in hospital, the more you see muscular deterioration. That is one of the reasons given for why, in some cases, discharge to assess might be the most appropriate.

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[Lord Warner (CB)]

I am sorry to interrupt the Minister’s flow. I have been listening very carefully to this. What I do not understand is what happens if there is not enough resource in the local authority. Local authorities have had pretty poor treatment over the last decade compared with the NHS. If there is not enough resource to either do an assessment or meet the needs of that assessment, does it then fall to the NHS to plug the gap if it wants to get the person out of hospital? We would like a little more clarity on that particular aspect.

[Lord Kamall (Con)]

I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.

Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.

Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.

We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.

Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.

[Baroness Wheeler (Lab)]

My Lords, it has been an excellent debate and I thank all noble Lords for their contributions, all strongly supporting this important group of amendments, which would ensure that the needs of both patients and carers were fully taken into account in the discharge process and that Clause 80 does not just wipe away carers’ rights—legal rights that have been hard-fought for. Although I am pleased that the Minister talked about further guidance being developed and co-produced, I cannot see how that will address the problem of replacing carers’ rights, which are being taken out of this Bill and need to be included in it.

I am also a bit disappointed that the Minister did not respond to my noble friend Lady Pitkeathley or give her the reassurances that she was seeking over the deep concerns about the expectation in the current guidance that unpaid carers will need to take on even more unpaid work. She made her views quite clear on this: it is paid work that unpaid carers need, not to be forced on to or to stay on benefits. They can take up jobs only if they get the care and support that is needed in the home or from the services that they need.

Noble Lords have made it clear that the discharge to assess model has to be matched with proper funding and community and healthcare services. The noble Baroness, Lady Hollins, reminded us of the importance of this in respect of the carers of people with learning difficulties, who face particular problems in caring. It is also overwhelmingly clear that noble Lords strongly support the establishment and the carrying forward into the Bill of existing carers’ rights.

I hope the Minister will meet urgently with my noble friend Lady Pitkeathley, Carers UK and others involved in these amendments, both to address the fundamentally wrong assumptions in the guidance about the role of unpaid carers and to ensure that their existing hard-won legal rights that have been taken away will be included. He also needs to provide the evidence called for by my noble friend on the overall assumption the Government are making that the discharge to assess process is better for carers than the existing rights that they have; it is not. This is a key issue that we will return to on Report, so I hope some action will be forthcoming from the government discussions between now and then.

On my own amendment, I would like to have heard a lot more reassurances about the timescales and timelines involved in the discharge process. I thank the noble Baroness, Lady Altmann, and in particular the noble Lord, Lord Scriven, for his support, and for explaining why this issue is important and how, practically, it would work with local authorities. On young carers, I particularly thank the noble Lord, Lord Young, and everybody who has participated in that.

I remind the Minister of the point from the noble Baroness, Lady Meacher: in the discharge process and in the assessments of carers it is really important that the question be asked whether they are able to care and whether they want to care. I would like the Minister to take up that issue. I know that carers feel strongly about this, but quite often, even if they are asked, no notice is taken and they just have to get on with it and nothing else happens. I would particularly like to see a response to that.

On those few points, I beg leave to withdraw my amendment. I hope the Minister acts quickly to meet carers and their representatives.