Antimicrobial Resistance

Baroness Thornton Excerpts

Thursday 2nd May 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, this has been a fascinating debate and revealed again the depth and breadth of the knowledge and passion your Lordships’ House has on this issue. I thank the noble Lord, Lord Lansley, for initiating the debate and the Library and many other organisations for their helpful briefings. I feel I should declare that I am a member of a CCG. I say that because it is rare to see a subject that is the victim of as many acronyms as the NHS, but this field certainly challenges that, combining as it does health, farming and the environment, the research and science communities, pharma businesses and international organisations. I was very grateful for the list of acronyms at the front of the Government’s five-year paper.

As noble Lords have said, we know that AMR currently results in 700,000 deaths globally every year, that by 2050 that could be 10 million, and that it threatens to turn back the clock on a century of medicine, rendering modern surgery, organ transplantation and chemotherapy too dangerous to use. Preventive treatment is needed, as the report says, to curb the spread of bacterial diseases requiring antibiotics. As the noble Baroness, Lady Walmsley, said, vaccines are the most effective preventive health tool in human history. We therefore need to expand the use of existing vaccines to have a better impact.

One of the most serious issues in the fight against AMR, which almost every noble Lord mentioned, is that no new class of antibiotics has been introduced for more than 30 years. Antibiotics are quite unlike any other category of drug, because every dose of antibiotics poses the risk of encouraging bacteria to adapt and develop resistance. That was illustrated by the noble Baroness, Lady Masham, in her description of the fight she has been having, which we have discussed on several occasions over the past year.

The Government’s five-year action plan is indeed an impressive document and a step along the road. I join the noble Lord, Lord Lansley, in saying that we may not be moving as quickly as we should. That has been echoed across the Chamber. Of course, it is not the complete solution, and serious questions have been asked in the debate. I join the noble Baroness, Lady Miller of Chilthorne Domer, in saying that the plan is disappointing in that it fails to give a clear commitment to incorporate into domestic law the European Union’s recently agreed legislation that bans routine preventive use of antimicrobials. It is a pertinent question at this point. Article 107.1 provides:

“Antimicrobial medicinal products shall not be applied routinely nor used to compensate for poor hygiene, inadequate animal husbandry or lack of care or to compensate for poor farm management”.


That is not being incorporated into UK law, as far as we can tell. I agree with the noble Baroness that the answers given to questions in the Commons were ambiguous, to put it mildly. Perhaps the Minister could take this opportunity to clarify the issue.

When I discussed the five-year plan with my noble friend Lord Winston, who regrets that he cannot join us this afternoon, he said two things to me. The first was that meeting this challenge will be well-nigh impossible given the dearth of lab, technical and science staff in the NHS at this moment. Secondly, he said that investment in research needs to be much greater and the follow-through more effective. My noble friend would have put those points more eloquently and, probably, more forcefully than I have, but neither of those issues is new; they have been articulated in your Lordships’ House over a long period.

Part of the NHS long-term plan talks about the delivery of the five-year plan we are discussing today. Will the staffing review address technical staff, of which there is a terrible shortage? They are essential for the delivery of both the NHS long-term plan and this plan. We know that the issue of research is not just about funding to deliver ground-breaking research. The UK does a great job in training PhD students, but loses a lot of talented people because the post-doctoral period is so unstable. We need continued support for interdisciplinary networks to strengthen research and develop capacity. Does the strategy address that issue as robustly as the emergency that we are facing requires?

Many noble Lords mentioned market failure, which the noble Lord, Lord Lansley, dwelled on in his opening remarks. According to Professor Dame Sally Davies, the reason for that is in part that the easy wins have been made and there is now a fundamental failure of the market for new antibiotics. Given the growing threat of AMR and the need to conserve and use current and future antibiotics carefully to preserve their effectiveness for as long as possible, it is clear that pharmaceutical companies are aware that any new antibiotic they bring to market will be prescribed only very sparingly rather than as a first-line treatment during its patent life, thereby reducing its profitability. I found that idea very dispiriting because it seems that we must address market failure. The report of the noble Lord, Lord O’Neill of Gatley, also recognised and addressed this issue.

That is even more discouraging when one realises that, over the past five years, we have seen pharmaceutical companies withdraw further and further from the development of antibiotics. In June last year, the latest company, Novartis, exited the market, bringing the total number of companies involved in antimicrobial drug development to six. The issues of market failure and disinvestment are incredibly important; therefore, the Government’s scheme to delink the price paid for antimicrobials from the volume sold is also crucial.

Even more depressingly, Professor Dame Sally Davies argued that the industry needed to step up and act in a socially responsible way, pointing out that tackling AMR was also in its interest. In her evidence to the Commons Select Committee, whose report I found extremely useful, she said:

“I am disappointed by the number of them”—


pharmaceutical companies—

“who have said quietly over a drink, ‘Well, Sally, we know you’re going to solve this. The Government will have to pay, so we’re waiting until you pay’”.

Where is the social responsibility? What terrible short-sightedness. To go back to the point about losing modern medicine, what is the point of developing the world’s greatest cancer portfolio if there are no antibiotics to rescue the patients? Yet industry expects us in government and the public sector to fund this, or that it will happen through somebody else being corporately responsible.

This market failure might lead to catastrophic consequences, as referred to on pages 74 and 76 of the five-year plan. It rightly states:

“The UK cannot solve such market failures alone”.


I question that because I should not like to think that the idea that we cannot solve this alone because we are 3% of the world market means that we do not try to do things in this country to turn this round. Our NHS has huge purchasing power: it pays billions of pounds to pharma, which makes billions in profit from these sales, for the drugs and treatments we need. We must have some leverage here. I ask the Minister: if a UK university or small pharma company found a new antibiotic, surely our Government would find a way to make sure that it was developed and brought to market. They would not wait for this to happen on the world stage, would they? I really want to hear that we will not have a repeat in the UK of the situation described in the MRC report, as referred to by the noble Lord, Lord Lansley. I received that report; the story of Achaogen was a graphic one of market failure in developing a new antibiotic. However, the noble Lord did not ask something that I wish to ask: what will happen to that drug? Achaogen developed a drug that can treat the most serious superbugs; therefore, it is not much needed so the company did not make enough money and went bankrupt. Where has that drug gone? What has happened to it? That is an important question.

[Lord Lansley]

As I understand it, the company is up for sale so, effectively, people would buy the patent and the drug.

[Baroness Thornton]

Let us hope that the people who buy it are public-spirited enough to know that they need to develop it and that that can be done. That puzzled me when I read the fascinating article, which I recommend to noble Lords. I thought, “A new antibiotic is out there and it is not available to us, for goodness’ sake”.

I congratulate the Government on the five-year plan. It is important, however, that the impetus behind it works, that the incentivisation schemes unlock investment in AMR, that we do not face the same issues being faced in America, and that implementation of the plan is speeded up.

NHS Funding: Mental Health Services

Baroness Thornton Excerpts

Wednesday 1st May 2019 Lords Chamber

[Lord Bradley]

To ask Her Majesty’s Government what proportion of the additional money allocated to the National Health Service budget over each of the next five years will be ring-fenced for the development of mental health services.

[Baroness Thornton (Lab)]

With his consent, I beg leave to ask the Question standing on the Order Paper in the name of my noble friend Lord Bradley. Noble Lords will know why he cannot be with us today, and the House will wish to know how much he and his family appreciate the sympathy that has been expressed.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, NHS England and NHS Improvement have set out their commitment to increase mental health spending by at least £2.3 billion in real terms between 2018-19 and 2023-24. In five years, this will represent over 10% of NHS England’s additional settlement. More details of how the long-term plan will be resourced will appear in the implementation framework, which is due to be published soon.

[Baroness Thornton]

I thank the noble Baroness for that Answer. Given that mental health illnesses account for 28% of the burden of illness in the NHS but receive only 13% of its funding, I find her Answer very confusing. Can she be more precise? This is not just about the number of staff required but about how much will be required to achieve parity of esteem and over what period.

[Baroness Blackwood of North Oxford]

I thank the noble Baroness, Lady Thornton, for her question on behalf of the noble Lord, Lord Bradley. I am sure that the whole House will want to join me in sending him and his family our support at this difficult time.

The noble Baroness has asked a very important question. The mental health budget will increase by £2.3 billion by 2023-24, growing faster than the wider budget. We are using transparency to drive improvements. The mental health dashboard shows that last year, for the first time, all CCGs met the mental health investment standard, which is an encouraging sign. This builds on the work done in the five-year forward view, which delivered real improvements for patients. It delivered £247 million for liaison psychiatry, £290 million for perinatal services and £400 million for crisis resolution and home treatment teams. However, we will not rest there. The long-term plan will deliver much more for patients, including 345,000 more children and young patients to receive specialist support services. This is the ambition that we have and the ambition that we will deliver.

National Institute for Health and Care Excellence (Miscellaneous Amendments) Regulations 2018

Baroness Thornton Excerpts

Wednesday 1st May 2019 Lords Chamber

[Baroness Thornton (Lab)]

I thank my noble friend for bringing this matter to the Floor of the House and for leading this short discussion. I too have many questions for the Minister but many of the questions that I would have asked have already been asked by my noble friend and the noble Baroness, Lady Jolly. It seems that our concerns are very similar. I agree with the noble Baroness, Lady Jolly, that when I read through the notes accompanying this regulation, it seemed puzzling that the consultation had produced a majority against this process, and I too was not completely convinced by the Government’s justification. That must lead to something which we can probably call cuts and wanting to save money. To want to save money with an organisation which is so integral to our NHS infrastructure and so important to ensuring the efficacy and cost benefit of and access to medicines and procedures is not a sensible way to proceed.

Some of my other questions centre around a concern about the impact that these charges will have on the jewel in the crown that is the UK-based science industry, particularly at a time when there is already such uncertainty with the dual impact of Brexit and these charges. It seems that the additional costs for a market may diminish the UK’s attractiveness for life science businesses, which has already been mentioned, and may also mean that NHS patients get access to new therapies later than those in other countries across Europe, which my noble friend also alluded to. Has there been an assessment of the impact of these charges on the UK bioindustry and its attractiveness to the international life science community, and of the UK as a location to research, develop and launch innovative medicines?

What will be the impact on patients? The UK BioIndustry Association has stated its concerns that the charges for technology appraisals could either prohibit or delay patient access to medicines in England. This could result in inequalities across the UK, as medicines may be available in Wales and Scotland, where charges for technology appraisals have not been introduced, before receiving approval for use on the NHS in England. That might disproportionately affect patients with very rare conditions, and therefore might also undermine the UK rare disease strategy to ensure equity of access across all four nations of the UK. Have the Government considered not only the financial impact but the potential impact on patient health? Do the Government have a strategy in place to mitigate delays in patient access to medicines that may come from these charges?

I join the noble Baroness, Lady Jolly, in asking whether there will be a review of the impact of this proposal, when that will take place, and when we will learn about the impact of this proposal on NICE and the NHS infrastructure. That will be important. We need to review this, because I fear that it may be a wrong decision.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

I thank all noble Lords who have contributed and congratulate the noble Lord, Lord Hunt, on securing this debate. It is an important subject and it is right that we take time to consider it. I know that he takes a keen interest in NICE’s work from his previous role as the first Minister with responsibility for NICE, and it is a privilege to have taken on his mantle some years later.

This year marks a significant milestone for NICE, as it celebrates its 20th anniversary, during which time it has transformed the way in which decisions are made in the health and care system. I echo the comments made by the noble Baroness, Lady Thornton, who referred to NICE as a jewel in the crown of the UK life sciences ecosystem. She is absolutely right that we must ensure that we not only protect it but promote its success. Since its inception, NICE has played a vital role, not only in securing maximum value from health spending but in ensuring that patients are able to benefit from rapid access to effective new drugs and other treatments. The noble Lord, Lord Hunt, hit the nail on the head when he said that that balancing act in the health system is so challenging.

Of course, the NHS is required to fund the treatments recommended through NICE’s technology appraisals and HST evaluation programmes, so that they can be provided if a patient’s doctor says that they are clinically appropriate for the patient. Over the past 20 years, more than 80% of NICE’s recommendations have supported use of the technology assessed, meaning that many thousands of patients have benefited from rapid access to effective new treatments. A less-frequently reported statistic is that 75% of HST applications have also gone through, which is encouraging.

Recent IQVIA research has just been published which showed that, despite some of the frustrations we have with update and access—which is something we are working hard on—the UK is in fact one of the fastest countries in Europe to get products through its regulatory system. We can be very proud of that, and must protect it.

I know that your Lordships will agree not only that it is extremely important that we have a system such as NICE in place to ensure the NHS spends its money in the most effective way possible, but also that it is critical that NICE operates on a sustainable footing so that it continues to be responsive to developments in the life sciences sector, to which noble Lords all referred.

To date, as has been mentioned, NICE’s TA and HST programmes have been funded through government resources but, as is common with government bodies, it is right that NICE considers how to operate to the utmost efficiency, and that those who stand to benefit from services contribute.

This is standard procedure and a standard model for many organisations and ALBs such as NICE. It is standard for the MHRA, the HTA, the CQC and for HTAs in other countries, so we are not operating an unusual procedure here, as the noble Lord, Lord Hunt, mentioned. I was grateful for his support for the charging model.

However, recognising the need for sustainability must be balanced with the imperative to encourage innovation, and the Government and NICE believe that the most appropriate and sustainable model for NICE’s TA programmes in future is for it to levy a proportionate charge on companies that benefit directly from its recommendations. This goes right back to a recommendation of the triennial review of NICE in 2015, so long-term work has been going on in this area. Recognising the importance of getting it right, the Government consulted on the draft regulations. That consultation has been referred to by noble Lords. At that point, as part of those proposals, the Government proposed the 25% discount for small companies. The consultation also sought views on a proposal to enable NICE to recruit appeal panel members engaged in the provision of healthcare in the health services across the UK instead of just England. This has not been mentioned and I know is widely supported, but I just wanted to point out that fact, which we are very pleased about.

As was raised by the noble Baronesses, Lady Thornton and Lady Jolly, there were 78 responses to the consultation, around half of which represented views from the life sciences industry, including pharma companies, industry representatives, consultancies and medtech companies. Other responses came from patient groups, NHS organisations and individuals. Although, as has been said, the majority of respondents—62%—disagreed with the specifics of the proposal to charge companies for making recommendations, the analysis showed that just over half of respondents agreed that life sciences companies should contribute to the cost of developing NICE recommendations, which is why further work was done to develop the charging proposal but refine it.

Respondents also supported, by 59%, a mechanism for reducing the impact on small companies, but felt that the proposed 25% discount did not go far enough. Other more specific concerns were raised about the potential impact on patient access to new treatments, in particular for rare diseases, the impact on NICE’s independence, and the analysis contained in the impact assessment.

The SLSC also picked up on issues in its report, and I will address some of those in response to points raised by the noble Baronesses, Lady Thornton and Lady Jolly. The Government considered the issues raised in the consultation very carefully and carried out further analysis to feed into the final impact assessment. We concluded that it was appropriate to make two main changes to the policy in light of the consultation responses. These particularly dealt with concerns about the design of the charging with respect to SMEs. I know that noble Lords are well aware of those concerns.

There is an increased discount for small companies of 75%, to minimise barriers to the participation of small companies wishing to bring forward new products. I realise that many feel that that did not go far enough but, to address that concern, it also included the new power to enable the Secretary of State to direct NICE in specific cases to calculate charges on what it considers to be the appropriate commercial basis. This provides more flexibility for amending charges, should that be required in future, subject to consultation with stakeholders. For example, we may see different types of innovation, including devices or digital products going through TA programmes, and this provides flexibility for the Secretary of State to direct NICE to propose charges at a level appropriate to those markets. I think that responds to the point raised by the noble Lord, Lord Hunt.

Social Media and Health

Baroness Thornton Excerpts

Tuesday 30th April 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for repeating this important Statement. This discussion provides a good backdrop to the debate to follow, on the online harms White Paper. There are essentially two matters of concern here: online harm and false news, which includes the health impact of anti-vax material.

After the scandal that followed the death of Molly Russell, and the bravery of her father in speaking out against the online harm perpetrated by platforms such as Instagram, we were promised decisive action, and the tragedy gave serious momentum to the content of the online harms White Paper. Mr Russell tweeted a link to a Telegraph article yesterday, saying that he had challenged Instagram and the company has said that it will now act. Coming out of yesterday’s hour-long meeting with the industry, the Secretary of State announced a few hundred thousand pounds in donations to the Samaritans for research into online harm, which is of course welcome. However, these social media platforms must be made to take responsibility for the harmful content and dangerous fake news they host.

Instagram said that it would ban all graphic and non-graphic images of self-harm in February. As far as I can see, it has not done so. Like my honourable friend Jon Ashworth MP in the Commons earlier, I did a test a couple of hours ago. To be more accurate, since I am not an Instagram subscriber, I got my researcher to demonstrate for me what happens if you type into Instagram’s search engine the term “self-harm”. You get several columns of results; the first is called “Top Results” and does not produce any links. It says that no content can be found, which is good, but I am afraid the content is still there. If you click on the next column, headed “Accounts”, there are hundreds of accounts concerning self-harm that you can access. If you click on the third column, headed “Tags”, there are 725,000 posts that mention self-harm. Some may direct you to get help but most will not, and some show graphic self-harm pictures and videos. Some of them romanticise, if you can imagine such a thing, this activity. As any health expert will tell you, for those youngsters—some are very young indeed—these are the triggers to self-harm.

The noble Baroness says that Instagram now has a policy of globally removing graphic self-harm imagery. As far as I can see, it has not done so yet. The same applies to websites concerning suicide. If you search for “#killmyself”, you will find huge numbers of results; ditto if you search for “eating disorders”. Research shows that 22 % of young adults report self-harm and suicide-related internet use. This is a crisis. There may be many reasons for this figure, and many solutions, but the internet must take responsibility for the content it contributes to this. Did the Secretary of State challenge Instagram on the assertion that it had taken down content? Has he done what my honourable friend and I did and tested it himself?

Did Instagram give a timescale, or is it waiting for the Samaritans’ research? That seems to me to be not an acceptable solution right now. I welcome the involvement of the Samaritans, but not if it means a further delay to action. It does not need research to know that the content of some of these sites is totally unacceptable and needs to be got rid of. Perhaps the noble Baroness can explain what the Samaritans’ research will be used for and its timescale? These are very, very rich organisations, and a few hundred thousand pounds to the Samaritans does not mean they can offload their responsibility to deal with this content; they have billions of pounds that can be used for this purpose.

The reason I am concerned is that these companies have form. Over many years of warm words and no change, they have consistently resisted taking responsibility for the content they carry. They have had to be pulled, kicking and screaming at every turn, into behaving with responsibility. I repeat: will the Secretary of State test this by looking at it himself?

The content of these platforms is why the White Paper is so urgently needed. I want to ask only one question about it; the debate will take place in a few moments and my noble friend will certainly pose many questions. However, if a young person even accidently accesses, for example, a self-harm image, there is a likelihood that the algorithms—which look at what every one of us is accessing online—will pick this up. While noble Lords may receive unwanted information about house extensions or the cost of flights, such a youngster may find that they are being led to more sites depicting self-harm. In other words, the algorithms can reinforce harmful content. How will the Government seek to mitigate this unintended consequence?

I turn now to the use of false information in anti-vax campaigns, which has led to a massive increase in outbreaks of measles, as the noble Baroness said in her Statement. The issue here is not just the dangerous anti-vax propaganda on platforms such as Facebook, or indeed Amazon. A story in today’s Guardian says that a young person was delivered a book, and inserted in it was an anti-vax leaflet. One has to ask how on earth it got there. The wider issue is that of public health policy and resourcing.

Are the Government considering banning unvaccinated children from schools in England, as the Secretary of State suggested on the radio last week? I hope not. Do the Government have a clear vaccination action plan? Public health services have been cut by £800 million and, in recent years, health visitors have been cut by 8% and school nurses by 24%. This will not help with the vaccination drive. Will the Government commit to reversing public health cuts and cuts to health visitors, and invest in general practice to meet the recommended 95% national vaccination coverage rate, as recommended by the World Health Organization?

[Baroness Jolly (LD)]

My Lords, I too thank the Minister for repeating the Statement. I am sure nobody in your Lordships’ House doubts the benefits, as well as the dangers, of social media. As the noble Baroness, Lady Thornton, has just stated, the tech giants really need to recognise their responsibilities by taking action now to remove material that could damage the vulnerable.

I would like to link the Statement with the NHS Long Term Plan. In it, there is a commitment to increase spending on children’s and adult mental health services. What figure will this amount to? How much of it does the department anticipate will be earmarked for technology? Where will it be directed? Who will receive the money? What does the department expect the NHS to do to support this move? What criteria will govern its use?

Vaccination uptake is clearly a current issue. How does the department anticipate that social media can help and not hinder the uptake of these life-saving shots?

NHS Mandate

Baroness Thornton Excerpts

Thursday 25th April 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for repeating the Answer to the Urgent Question asked by my honourable friend Jonathan Ashworth in the Commons earlier today. Why was it necessary to ask that question at all? I hope the Minister may be slightly embarrassed by the lack of courtesy in not informing Parliament of the delay in laying the mandate for NHS England before Parliament in a timely fashion. That is the first time that has happened since the Health and Social Care Act 2012 came into operation. She must also recognise that this is a very important matter. The Secretary of State appears to have ignored the statutory obligation which was much debated and discussed in your Lordships’ House before that Act was passed. Your Lordships placed huge importance on the mandate and the fact that this was how the NHS would be held to account.

Why was this deadline missed? The answer—that the NHS was busy doing the plan and such things—is not adequate. This is about accountability to Parliament. We need to discuss why targets in last year’s mandate have not been met. This is a serious omission for the mandate because it sets the objectives that the Government expect NHS England to achieve, as well as its budget. I absolutely accept that the Government are committed to the budget and the plan, but they do need to address, with some apology, the lack of accountability that this omission means.

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her question. I refer to the comments by Simon Stevens in the PAC yesterday, when he laid out how he sees the situation for the NHS:

“We have an agreed direction in the long-term plan … We have the budget set for the next year, and we have the NHS annual planning process … wrapped up. 2019-20 is … a transition year into stepping into the new five-year long-term plan”.


As the noble Baroness knows, planning guidance for 2019-20 was updated in January when the long-term plan was published. For all practical purposes, this document sets the decision-making for local NHS decision-makers during this year. The national implementation programme for the long-term plan, which will set the longer-term milestones for delivery of the plan until 2023-24, will be published at the end of this year. The mandate and its accountability framework is an important accountability mechanism and strategy document for the NHS. It is taking longer partly because of the close working of NHSE and NHSI and the transitional nature of this year.

It is important that this document does come out, for the purposes of strategy and accountability, but it is most important that it is got right. That is why it is taking slightly longer. I look forward to the debate this House will have when it is published. I am sure that the noble Baroness will hold us to account in the usual manner.

Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

My other big concern was about independent hospitals. I have spent a lot of time in my career visiting these places and finding the most vulnerable people with learning or physical disabilities, mental health problems and the rest of it very often tucked away hundreds of miles from their home. Originally the idea was that the independent hospital would be responsible for the assessment and the whole business of deprivation of liberty. In my view, that idea was absolutely horrendous, and, as I understand it, the Government have accepted that and will make sure that the local authority, ideally in the place the person comes from, will be responsible for that process, and therefore the pressure will be to get those people out of those hospitals and back into their community. This again seems to be a minor adjustment made as a result of the work of this House, but for the individuals concerned it is a very significant benefit. So I congratulate both Ministers who have been involved in this Bill, and the Bill team, on the work they have done to respond to concerns expressed by Members across this House. They have done the best they could, so I thank the Minister.

[Baroness Thornton (Lab)]

My Lords, it is always a good moment when we get to this point in any legislation. It is also an opportunity for us to look at where we started in July. In July, my Chief Whip spoke to me about a really small, uncontroversial Bill that would amend the Mental Capacity Act. I am not criticising him, because that is what he had been told. The idea was that we would have the Second Reading quickly before the Summer Recess and then move straight into Committee immediately after it and get through the Bill quite quickly. It is a great testament to this House that we recognised quite quickly that it might be a small Bill but it was certainly not uncontroversial. As I said when we moved into Committee, the noble Baronesses, Lady Jolly and Lady Barker, and I were sending each other messages about this Bill when we were all poolside in different parts of Europe because we realised that we needed to understand it much better.

I do not accept the criticism that we have failed. I think we started off with a flawed Bill and that we have improved it. In a few years’ time I think we will almost certainly return to this subject, because by then we will have discovered things that have not worked out and that need to be reviewed and possibly changed. We need to thank both Ministers for listening, hearing and working to change the Bill. I particularly thank my fellow Peers for working so co-operatively and with such great expertise. It is always a pleasure when we do that and we are always at our most effective when we do so, and I have been very happy that various Members of the House have taken the lead on various issues throughout the passage of the Bill. The Minister named everybody, so I shall not do so again, but they know who they are and it has been a pleasure to work with them.

We should be pleased that we have successfully tackled what, as far as we were concerned, were certain huge issues, many of which have been mentioned by the noble Baroness, Lady Barker. They included care home managers’ powers, conflicts of interest, private hospitals, the definition of deprivation of liberty and the information provided. We should be proud that those issues have been tackled. I particularly thank the noble Lord, Lord O’Shaughnessy. I have not often been called a juggernaut but on Report he suggested that I was. I think he was expressing the opinion that in my remarks I was representing the views of the whole House and that we were definitely coming for him, as it were.

If we are to learn some lessons from this, one is possibly that the Bill team took a little while to gear up to what happens in the House of Lords and how we approach things. We talk to the stakeholders—we have a continuous dialogue with them—and that is the next group that I would like to thank. I thank all the stakeholders who came to endless meetings with us to make sure that we did our job properly, although some of them still have some major concerns.

I say to the House that what matters is what happens next. First, it seems likely that within the next year or so we will have another mental health Bill, so it is quite possible that some of the issues that we have been concerned about will re-emerge and be discussed during that process. Secondly, we will have the regulations and the code of practice. I would like to be assured that the consultation, which might not have been quite as good as it should have been at the beginning of this whole process, will absolutely inform the code of practice and the regulations that follow the implementation of this legislation.

I do not wish to threaten the Minister but, after the past eight or nine months, there is a body of commitment and passion over this issue that will certainly be watching and be interested in what happens next and will have something to say about it. Therefore, in a spirit of positiveness, we hope that we will be able to help with the next stages but we will certainly be watching them to make sure that the gains that we have made are reflected in the code of practice and the regulations.

Finally, I very much thank the Minister, who came in in the middle of the Bill. This is the second Bill that she has had to pick up and run with in your Lordships’ House. She has done it with great dignity and intelligence, and it has been a pleasure to work with her.

[Baroness Blackwood of North Oxford]

I thank noble Lords for an important moment in the passage of the Bill. I assure them that they will never have to threaten me to get me to listen to important points regarding the progression of legislation of this import. I identify myself with the comments of the noble Baroness, Lady Tyler. This is indeed a pragmatic solution to the very challenging problem of getting the right solution.

I also echo the comments of the noble Baroness, Lady Finlay, who said that this has been a bumpy ride, but it is a major decision to deprive someone of their liberty, so it is right that there has been very detailed scrutiny of the legislation. When someone is deprived of their liberty we have to ensure that it is always necessary and proportionate and, wherever possible, consistent with their wishes and feelings. I agree with her that the advocacy provisions in this Bill are stronger than in the DoLS legislation, and that it will provide greater responsiveness and flexibility than previous legislation. We can be proud as a House to have delivered that.

I am sorry to hear the concerns raised by the noble Baroness, Lady Murphy. As we proceed through the next stages of engagement over the code of practice, I hope that we shall be able to prove her wrong, in the most positive sense. We have put in place very strong measures for whistleblowing thanks to the contribution of the noble Baroness, Lady Watkins; thanks also to her work, we have strengthened the provisions for information. We have also to nail down the questions around the definition, of course, but I think it right that this is not on the face of the Bill for all the reasons that we have debated at great length in this Chamber. I will not rehearse them now but will try to answer some of the questions that I was asked.

The first is about when the code of practice will be published. Obviously, as the noble Baroness, Lady Finlay, pointed out, the department is collaborating very closely with the sector in the preparation of the code; that is already happening. We are working with many organisations and individuals. The drafting will be considered by expert reference groups and people with lived experiences, to ensure that we get the most practical and workable code of practice. The department has already convened a working group involving a wide range of stakeholders. We expect to have output from the working group by this summer. After Royal Assent, I will place a letter in the Commons Library as requested; this will contain timescales for the code of practice, including when a draft code will be published for consultation. I hope that is reassuring.

As I have said, the statutory guidance will include a suite of case studies which will demonstrate how the definition applies in different settings and scenarios. It will provide clarity and aid to practitioners. We are collaborating to ensure that it can provide clarity and lack of ambiguity and can be a real help to those using it. As the noble Baroness, Lady Tyler, said, we have made a commitment that it will provide detail about when deprivation of liberty does and does not occur. It will reflect existing case law, including the Ferreira decision, and it will set out the meaning of a deprivation of liberty in a positive framing; this should be reassuring. On the question of a review, the code can be updated at any point. This will ensure that it can reflect changes in legislation practice or case law—that is, the entire code, not just the definition. I hope that is reassuring.

I would like to respond also to some of the points made by the noble Baroness, Lady Barker. She is absolutely right regarding the questions of resourcing, the backlog and training. We are very alive to this. A further impact assessment will be done following Royal Assent and we will work with stakeholders collaboratively to take on board feedback from previous iterations. We will also ensure that the Government will provide guidance ahead of implementation. That will include steps that can be taken to help reduce the backlog.

However, we will not stop there. The Government are committed to supporting training ahead of the new system coming into force and are working with Skills for Care, Health Education England and Social Work England to deliver that. Ahead of day one, we will work with local and national networks and the Welsh DoLS network, in partnership with the LGA and ADASS, to reduce the existing backlog. Work is under way for that. Cared-for persons who have existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will be needed to try to manage the volume of work that will be undertaken. I hope this is reassuring. To respond to the point raised by the noble Baroness, Lady Finlay, I can assure her categorically that the code of practice will be statutory.

I hope that all this is reassuring; I think this is a great step forward and I commend the Bill to the House.

Tobacco Harm Reduction

Baroness Thornton Excerpts

Tuesday 2nd April 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, it is important to say that snus is snuff—let us be quite clear that we are talking about a tobacco product. It seems slightly odd that the noble Viscount should suggest that we swap one very carcinogenic product for one that might be slightly less carcinogenic and will give you only mouth and throat cancer. Will the Minister commit that the review of tobacco regulation will include an assessment of the continuing attempts by major tobacco companies to market their brand identities through advertising campaigns and sponsorship—for example, through Formula 1? Indeed, one of her colleagues recently had to write to Philip Morris, which makes Marlboro cigarettes, telling it to remove poster adverts for “healthier” tobacco products from shops around the UK.

[Baroness Blackwood of North Oxford]

Smoking remains the biggest cause of death in this country. Strict rules are in place to prevent tobacco companies promoting their products, including through sponsorship. We take the unlawful promotion of tobacco products extremely seriously and expect any organisation found to be flouting the rules to be investigated.

Health: HIV

Baroness Thornton Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank my noble friend for that Question and pay tribute to the work of the Lord Speaker. I agree with the premise of his Question. Public Health England has attributed the success that we have had, with 92% of people with HIV now diagnosed, 98% of patients receiving treatment and 97% virally suppressed to a combination of HIV prevention, including expanded HIV testing, prompt initiation of antiretroviral therapy after diagnosis, condom provision and PrEP, all of which we will need to build on as we develop plans to achieve zero infections by 2030. He is absolutely right that these will all need to go into development of that plan.

[Baroness Thornton (Lab)]

My Lords, it is greatly to be welcomed that science is now leading us to end new transmissions by 2030. But is the Minister aware that women who are HIV-positive are four to five times more likely to develop cervical cancer? I agree with the noble Lord that there is a need for a new strategy. Will the forward plan and investment in public health recognise the need for investment in prevention and early intervention and a package of care for all women living with HIV, which includes going for regular smear tests?

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her question. She is absolutely right that the key to us making progress is prevention and early intervention and also understanding about any crossover consequences with other illnesses. She is also right that the key is closing the gaps now. In 2017, 43% of diagnoses were made at a late stage of HIV and, although there has been a decline, the largest group diagnosed at late stage were black African heterosexual men and women. It is important that we close those gaps. Some key projects have been working on that through the HIV Innovation Fund so when we bring forward plans for HIV 2030 it is important that we find out how we can close those gaps if we are indeed to get to zero by 2030.

Children: Oral Health

Baroness Thornton Excerpts

Tuesday 12th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank my noble friend for his question; he is of course very expert in this area. We want NHS dental services to be attractive for the profession and we remain committed to reforming the dental contract, which should help, but we recognise that there are a range of reasons for contracts being handed back, whether it is retirement, a decision to concentrate on private work or, in some cases, reorganisation of the companies providing the service. It is important that NHS England works with other local dentists to ensure that patients can continue to access dental care. There is a level of concern about recruitment and retention of dentists, and those difficulties need to be addressed by NHS England in its role as the commissioner. It is continuing to ensure that it works collaboratively with the profession and the department is keeping a close eye on this.

[Baroness Thornton (Lab)]

My Lords, tooth decay is a major source of health inequalities, as the noble Baroness has acknowledged, with 33% of the most deprived five year-olds having tooth decay, compared with 13.6% of the least deprived. In some parts of the country—the north-west, the West Midlands and Yorkshire—tooth decay rose for the first time in the last 10 years. How much investment will the Starting Well Core scheme have and for how long? When will we learn from the Government whether this has provided the right kind of remedial action for the most deprived children?

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her question. I shall write to her on the exact amount of investment, but there are some reassuring figures coming forward: 77% of all five year-olds now have no visible decay, compared to 69% in 2008; there has been a fall in the number of extractions per 100,000 finished consultant episodes for the first time in the last decade; and more children accessed dentistry over the last year. All this is reassuring and we are committed to improving access and equality of access to dental care—that is what the Children’s Oral Health Improvement Programme Board, led by PHE, is intended to do. It brings together 20 stakeholder organisations specifically focused on oral health. There is a significant amount of activity targeting exactly the issue the noble Baroness raises.

Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

Moved by

[Baroness Thornton]

1: Clause 1, page 1, line 3, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”

[Baroness Thornton (Lab)]

My Lords, I rise to move Amendment 1 and speak to consequential Amendments 2, 12, 13, 14, 45, 46 and 47. The House will realise that these are the same amendments that we discussed in Committee. I am grateful for the support for them that I have received from across the House: from the noble and learned Lord, Lord Judge, the noble Earl, Lord Dundee —who, we learned yesterday, cannot be with us today—and the noble Baroness, Lady Jolly. I like to think that the reason for their support, and that of other noble Lords in Committee, is the amendments’ simplicity in revising the scope of the Bill to deal with the healthcare arrangements for the EU/EEA and not the whole world.

Like other noble Lords, I am very grateful to the Minister for the time and effort she and her team have put into discussing the Bill with noble Lords. We can see from today’s amendments that the Government have listened to concerns expressed during the Bill’s stages. That is to be welcomed. I am afraid, however, that on this issue—the scope of the Bill—we find ourselves some distance apart.

We need to remember that the DPRR Committee noted the Bill’s breathtaking scope and commented that the scope of the regulations could hardly be wider. The committee said that it was one thing to introduce skeletal legislation needed in the event of no EU withdrawal agreement, but that this Bill was as much to do with implementing future reciprocal healthcare arrangements with non-EU countries—indeed, that it went much further than merely giving effect to healthcare agreements and covered the provision of any healthcare by anyone anywhere in the world. It concluded that the powers of the Bill were inappropriately wide and had not been adequately justified by the department.

This view was expanded in many ways by the Constitution Committee, which said that while the exceptional circumstances of the UK’s departure from the European Union might justify legislation containing broader powers than would otherwise be constitutionally acceptable, this did not extend to giving effect to new policy unrelated to Brexit. It concluded that the Bill should be limited to future reciprocal healthcare arrangements with countries that participate in the existing European health insurance card scheme. We agree. These are the tests that need to be brought to bear on the Bill, as was so eloquently expressed by the noble and learned Lord, Lord Judge, in Committee.

During our discussions with the noble Baroness, it was suggested that it would be in some way inappropriate for this House to reduce the scope of the Bill. If the Constitution Committee and the DPRR Committee think that this revision is appropriate, we are bound to give the matter serious consideration. Surely it our job to offer the elected Chamber the opportunity to reconsider the breathtaking scope and powers of this Bill.

Then there are the issues of practicality and policy. On the practicality test, in this pre-Brexit period—and, my goodness, we are now at possibly the most exciting bit, with the discussions that are taking place in the Commons—surely it should be the Government’s priority to ensure that the millions of British citizens currently benefiting from reciprocal healthcare agreements with the EEA and Switzerland, by virtue of our membership of the European Union, continue to do so. The same should be true for European citizens in the UK. A significant proportion of the many UK citizens living in the EU are pensioners, and they will be personally liable for healthcare costs after exit day unless a new agreement with the EU, or new bilateral agreements with individual member states, are in place. It would cost the UK taxpayer more to treat British nationals who have to return home for healthcare.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, I am grateful to the noble Baronesses, Lady Thornton and Lady Jolly, and to the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, and the noble Earl, Lord Dundee, who I am sorry could not be with us today, for giving me the opportunity to deal with the important matter of the global nature of the Bill. We have already had a good deal of debate about this during our progress on the Bill, but it is a pleasure to return to it today yet again.

It is important that the Government explain why we believe it appropriate to seek powers which are global in nature. As I mentioned in my response in Committee, the EU Home Affairs Sub-Committee of this House, which is very wise, remarked that:

“Reciprocal healthcare oils the wheel of the day-to-day lives of millions of citizens”,


and brings the,

“greatest benefit to some of the most vulnerable members of our society”.

I am grateful to noble Lords from across the House, not only in the debate today but during the progress of this Bill, who have been clear that there is widespread cross-party support for the current EU arrangements, and for providing the people who rely on these arrangements with the assurance that the Government are taking all the necessary steps to support them in these uncertain times.

We clearly all support the arrangements we have with the EU. It therefore does not seem logical to preclude the possibility of seeking new arrangements or strengthening existing ones outside the EU. Where the Government have a good policy in one place, it seems logical that we should want to extend it to others. Reciprocal healthcare agreements promote tourism and facilitate economic exchange and growth by enabling people to study, travel and work abroad without worrying about their ability to access healthcare, or the cost of doing so. As we have discussed in our debates on this issue, reciprocal healthcare arrangements are particularly important for older people, people such as me with chronic conditions, or people with disabilities, for whom access or costs can be a genuine barrier to travelling.

Reciprocal healthcare agreements enable people to travel overseas for planned treatment, which enables patient choice. One of the genuine benefits of the current EU arrangements is to enable mothers to travel to a home country to give birth close to their families and support networks. That is available only to EU citizens at the moment, not to those from other countries who live here. Our existing arrangements with the EU enable around 1,350 UK residents to receive planned treatment or maternity care in another EU member state. We do not want to be forced to limit choices only to EU countries in the future.

Reciprocal healthcare agreements can also help to support international healthcare co-operation through fostering closer working relationships between countries and states. We can be proud that the UK is a prominent voice in the global healthcare community and is a key driver in global attempts to raise standards of patient safety. We could help to further drive that agenda through developing even stronger relationships with our close partners. I have heard the concerns raised by noble Lords about the costs of these arrangements. Reciprocal healthcare agreements enable countries to reimburse one another on a fair and transparent basis. Noble Lords, particularly the noble Lord, Lord Foulkes, have queried why we cannot simply rely on waiver agreements. Fair reimbursement is the key reason why. Without this Bill, we would be restricted to waiver agreements outside the EU without a way to establish fair and transparent payment and cost-recovery mechanisms.

Agreements with other countries predate the EU and have never been limited to Europe. This is one reason why the concept of restricting the Bill to the EU does not make sense. We have agreements outside the EU now and will continue to have them in the future. The noble and learned Lord, Lord Judge, and my noble friend Lord Ribeiro raised the matter of scope—the countries which the Bill would apply to. As Clause 4 sets out, data can be shared only in accordance with the GDPR and our data protection regulations. This means that no reciprocal healthcare agreement could be reached with a country that does not meet data adequacy standards. Over and above that, as my noble friend rightly noted, this scope would be further narrowed by the need to agree reciprocal healthcare arrangements only with countries that have a compatible healthcare system. This would mean that countries such as Venezuela, raised by the noble and learned Lord, Lord Judge, would simply be out of scope for an international healthcare agreement. Safeguards built into the Bill would be in place.

I make it clear that I have heard the concerns raised at Second Reading and in Committee about the global scope of the Bill and the breadth of the delegated powers. We have taken considerable steps to address the concerns about the breadth of the powers—the root cause of the concern about the global scope. As has already been referred to, we have tabled a large package of concessions, which I worked hard to try to deliver. The first was to remove the consequential Henry VIII powers; I am taken by the terminology for this now being a “Blackwood amendment”. We have limited the ability to confer functions to public bodies. We have provided greater parliamentary scrutiny over regulations relating to data processing and greater transparency over the financial aspects of future reciprocal healthcare policy in the form of an annual report. I hope that this reassures the noble and learned Lord, Lord Judge. We have placed a statutory duty to consult the devolved Administrations where regulations make provision within devolved competence. Finally, and very significantly, we will sunset two of the three regulation-making powers at Clause 2, so that they can be exercised only for a period of five years after exit day. This final amendment means that it is not possible for the Secretary of State to set up any kind of long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as the DPRRC proposed. In tabling these amendments, we have limited the delegated powers and therefore the scope of what can be done under the Bill around the world. We have also provided additional parliamentary scrutiny mechanisms and greater transparency.

During the debate on Amendments 1, 2, 11, 12, 13, 27, 28 and 29, from the noble Baronesses, Lady Thornton and Lady Jolly, the noble and learned Lord, Lord Judge, and my noble friend Lord Dundee—who cannot be in his place—I have not heard any concerns raised on the fundamental principle of reciprocal healthcare in countries outside the EU. Rather, I have heard the need for reassurance that in implementing agreements with other countries we seek to appropriately cost such arrangements, protect the NHS, and ensure that those countries which we strengthen or make new agreements with have appropriate healthcare systems and are able to process data appropriately. We are firmly committed to all these principles.

When the Bill was debated in the other place, questions were raised concerning the possibility of a reciprocal agreement with Guernsey, which is something we will need to look into following EU exit. This was seen as a positive possibility of the Bill; it is just one example of how our relationships might evolve and how the Bill can offer people new opportunities which they are currently denied under our legislative framework. If the scope of the Bill is limited to matters relating only to EEA countries and Switzerland, the Government would be unable to implement a reciprocal healthcare agreement with countries such as Guernsey where we are able to reimburse one another fairly. We would also be giving up the opportunity to support people, to bring them confidence and comfort outside the EU.

As the UK considers its relationship with the rest of the world, it is appropriate to take this opportunity to consider strengthening our existing agreements while exploring possible agreements with other countries. The powers under this Bill allow us to fund healthcare overseas to support UK nationals who live in, work in, study in, want to visit or give birth in other countries, while ensuring that we also have appropriate scrutiny powers within this Bill. They also allow us to extend similar opportunities to overseas nationals to use the NHS funded by their own country, making the NHS more sustainable and fit for the future. This is what we would be giving up with these proposed amendments.

There has been much debate in this House and outside it about whether there should, in fact, be two separate Bills: one to provide for implementing agreements with EU, EEA countries and Switzerland, and the other at a later date to provide for countries outside that group. I believe that this is the intent of Amendment 4, in the name of the noble Lord, Lord Marks. That would not be an effective use of parliamentary time; it would prove a barrier to the development and implementation of policy in this area that is clearly in the interests of the people whom I have already discussed. I am also not clear how different a different implementing Bill would look, as it would simply be for the implementation of international healthcare agreements and would be rather similar, whether they are for the EU country or for a country in another part of the globe. It seems to be doing the same work twice.

With the Bill, we seek to ensure that we have an implementing mechanism for reciprocal healthcare now and into the future. While it may be appropriate in other policy areas for the Government to seek new primary powers to implement specific, individual international agreements, it is simply not the case with reciprocal healthcare agreements. These agreements are not far-reaching in nature and are very limited in subject matter: they are about reciprocal healthcare. As has already been discussed, the Government already rely on the royal prerogative to enter into these agreements with other countries. This Bill is simply a smarter implementing mechanism for these agreements.

I also have concerns that Amendment 4 risks our ability to effectively implement a future relationship with the EU. Recognising the broader benefits of reciprocal healthcare, we want a long-term relationship with the EU but, as with any area of policy, we must have flexibility as to how we negotiate with the EU and how we arrange our broader relationship with it. EU law evolves and, as we discussed in Committee, there are proposals currently before the European Parliament that would mean that elements of that model might change in the near future. This amendment would prevent the UK from implementing that evolved arrangement even if that was the desired negotiating position of the UK. If we put this on the face of the Bill, we would have no flexibility on how we would do that, including agreements already concluded with Switzerland and the EEA and EFTA states. The noble Lord himself acknowledges in his amendment that flexibility is needed, but through this amendment that flexibility would be difficult to apply in practice.

In relation to all the amendments in this group I firmly believe that, in pursuing future reciprocal healthcare policy with close partners outside the EEA and Switzerland, the Government are providing hope and opportunity to people. Our colleagues and friends in the other place overwhelmingly supported this endeavour. We have introduced significant restrictions on what this Bill can do globally. However, I regret that these amendments would prevent us from being able to look to the future and embrace an opportunity for EU exit. It would be a great shame to miss that opportunity.

I recognise the valuable contributions from many Members of the House on enhancing and improving many elements of this Bill; I thank them for the time that they have given me, but I am unable to accept these amendments. I hope noble Lords will feel able not to press their amendments on that basis.

[Baroness Thornton]

I thank the Minister for her remarks and for the attention that she has paid to this matter all the way through. Everybody appreciates that enormously. In a way, she has made my argument for me, as has the noble Lord, Lord O’Shaughnessy, because nothing in the Bill says that healthcare agreements have to be reciprocal. In a way, that proves that we do not need an international healthcare arrangements Bill: we need a European Union-EEA healthcare Bill to deal with reciprocal arrangements and do the job that we have in front of us.

I do not accept the argument put by the noble Lord, Lord O’Shaughnessy, tugging at our heartstrings, about the human consequences of this. Actually, there is nothing to stop the Government bringing forward a global healthcare Bill. I am absolutely sure that the Minister and her colleagues, with the help of the noble Lord and others, could get this into the Queen’s Speech in two months’ time, when we could have all these discussions about how it might work. He said that we do not have any disagreements in principle about this. Actually, we do not know whether we have any disagreements in principle about international healthcare because we have not had that discussion: that is the discussion we would have if we were dealing with a Bill that was being consulted upon, going through pre-legislative scrutiny and all those other things that we have been arguing need to happen if we are to have a Bill of the scope that the Minister and her party wish to have.

I thank the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, the noble Baronesses, Lady Brinton and Lady Jolly, and my noble friends Lord Foulkes and Lord Judd for their support. In particular, I thank the noble Lord, Lord Wilson, who, in his brief remarks got the argument absolutely right yet again. As I was preparing for this, I looked at the agreements we have with Australia and New Zealand, for example. These things are complicated—of course they are— and in a way that is why they deserve and need further consideration. I fear that we are not convinced by the Minister’s arguments and I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Thornton]

2: Clause 2, page 1, line 8, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, as I should have done at the beginning of the first group, I thank the Minister for her help and courtesy in discussing this Bill and in engaging with Peers across the House to see how we should proceed with it. I echo the words of the noble and learned Lord, Lord Judge, including his tribute to the Blackwood amendment in respect of Henry VIII powers. As the Minister will have appreciated and has recognised by her actions, there is a real concern about the use of delegated legislation to amend or revoke primary legislation and EU legislation.

Amendment 3 is intended to bring a constitutionally acceptable structure to the Bill. It will ensure that the powers of the Secretary of State can be exercised only within the context of regulations. I will start with a word or two about the other amendments in this group: Amendment 5, on the words “for example”, and government Amendments 6, 7 and 8, which limit the delegation of powers to public authorities.

As we have heard, Clause 2 contains the principal regulation-making powers. We had considerable debate, both at Second Reading and in Committee, about how unacceptably wide those powers are. The use of “for example” at the beginning of Clause 2(2) speaks volumes as to the disrespect shown in the Bill for the proper restriction of ministerial powers. The Delegated Powers Committee and the Constitution Committee have exposed how outrageously broad these powers are.

My amendment is directed at the absence of anything in the Bill that would limit the Secretary of State to exercising his Clause 1 powers only in accordance with regulations. One does not have to read far into the Bill to appreciate that, under Clause 1:

“The Secretary of State may make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom”.


This is wholly without restriction. It is this glaring deficiency—the failure to tie the Secretary of State to the exercise of powers in accordance with limitations either in the statute or contained in regulations—that my amendment is intended to cure.

The Minister frankly and commendably, if I may say so, recognised on our first day in Committee that the effect of Clause 1, if not amended in the way I suggest, would be to enable the Secretary of State to make or arrange payments without any regulatory limitation. She justified this untrammelled power—which, frankly, I find frightening—on the basis of urgency. She said that the Bill was unlikely to secure Royal Assent before March, so regulations would not be laid before the summer. If there were no deal, she explained, Ministers might need to use the powers before then. She mentioned—again, frighteningly—sharing data as well as making healthcare payments before the Government had a chance to get regulations passed to deal with these matters “more transparently”, as she put it.

This clause alone, unamended, would justify this country ruling out a no-deal exit and ensuring that our leaving date is delayed. It is an extraordinary travesty of the notion of the United Kingdom Parliament taking back control that we are asked to pass a Bill which involves ceding to Ministers an entirely unconstrained power to pay money out across the world on the sole professed ground that the Government failed to introduce legislation in a timely way, and to permit Ministers to spend public money and make arrangements of great public importance without any parliamentary scrutiny or authorisation.

I turn briefly to the other amendments in the group. Many of us still take the view that their scope is breathtakingly and unacceptably wide. The Government’s proposal to limit possible delegation of the Secretary of State’s powers so that such powers may be conferred only on a public authority is of course welcome; so is the limited five-year sunsetting provision, to which we shall return later, but, taken together, they barely scratch the surface of the massive transfer of unrestrained power from the legislature to the Executive set out in Clause 2. Of course, the sunsetting clause should be more restrictive—at least as restrictive as proposed by the noble and learned Lord, Lord Judge. Again, we will come to that later.

It goes without saying that the ridiculous and offensive restriction-busting words “for example” should be removed, as proposed in Amendment 5. However, the only satisfactory way to restrict the Government’s power to what is necessary and acceptable is for the House of Commons to now accept the amendment we just passed restricting the use of the Bill to replicating the arrangements we have with the EU, the EEA and Switzerland. We hope that it does that.

This Government and future Governments must show more restraint and respect for the proper limits to the scope of delegated legislation. In the Bill, as in others to do with Brexit, they have not done that. It is to be hoped that they return to a wiser path in future.

[Baroness Thornton]

I thank the noble Lord, Lord Marks, for his exposition, which saves me from exploring yet again the powers in the Bill. I shall speak to Amendment 5, which is a simple amendment but one that we think might be quite clever in its intent. It states that regulations under the Bill can be made only for specific purposes.

When the clause was debated in Committee, noble Lords discussed the nine regulation-making powers mentioned by the noble and learned Lord, Lord Judge, which brought comment from the DPPRC, about the widest possible scope. However, as drafted, Clause 2(2) appears to bestow infinite powers on the Secretary of State to make regulations by virtue of the seemingly innocuous phrase “for example”, which effectively grants the Secretary of State carte blanche to bring regulation forward outside the listed examples in relation to pretty much anything and everything. Just deleting those words will assist with the accountability that needs to be built into the Bill.

Amendment 5, which has the support of the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Jolly, would ensure that regulations can be brought forward under the Act only for the purposes specified. We will, of course, support the Minister in the amendments she has tabled in this group—Amendments 6, 7 and 8 —and I think the combination of our amendment and hers significantly improves the Bill, so I hope she will accept it. I probably need to say that, unless there is a very good reason why she does not want it and why it should not be there, we will seek support from the House for this amendment.

[Lord Judge]

My Lords, we have here a new example of constitution-making. We have now got rid of Henry VIII in this Bill and we have something rather more subtle—not something that that great, mighty ogre could have conceived of for himself.

The new example is:

“Regulations under subsection (1) may, for example”.


Those of your Lordships who were in the House when we discussed the Trade Bill last week will remember another regulation-making power—another blockbuster like this one—only the words used were not “for example” but “among other things”, in relation to regulations under whichever subsection it was. What kind of primary legislation is this? It is really rather alarming. The primary legislation provides:

“The Secretary of State may by regulations”,


do this, that and the other: (a), (b) and (c). Well, fine. The regulations “may” do nine things—there is an amendment to one of them to come later, but this is not relevant to present purposes—specifying just about anything you can think of.

Why do we not say, even in relation to the EU, that the regulation-making power should be defined as widely as it is in Clause 2(2) but not extend further? The reality is that, with these words, in truth there is no limit to the regulation-making power. I find that astonishing, and I suspect that many Members of your Lordships’ House will find that astonishing. So we now have within the terms of the Bill—subject to the Henry VIII point, which is going—in effect an undefined, unconstrained power given to the Secretary of State to make regulations. It will not do.

--- Later in debate ---

Moved by

[Baroness Thornton]

5: Clause 2, page 1, line 11, leave out “, for example”

[Baroness Thornton]

I listened very carefully to the Minister and I am not convinced, partly because the regulations under Clause 2(2) are very helpful. They give the Government everything they need to take forward the negotiations on reciprocal healthcare, and as the Minister herself said, we have put the regulations in place to help with a no-deal situation, which I hope will not occur. But the noble and learned Lords, Lord Hope and Lord Judge, made the point that those words are, while dangerous might be an exaggeration, certainly not appropriate.

[Lord Woolf (CB)]

Does the noble Baroness agree that, with “for example”, you may not be extending the jurisdiction of the regulations but actually limiting their range? That is what the Minister was seeking to tell us in her eloquent description of her case. If you say “for example, cows”, you have the example of animals that fall within the range of cows. Without that phrase, some cases would not apply to cows.

[Baroness Thornton]

I hate to disagree with the noble and learned Lord, Lord Woolf, but the words “for example” expand the list rather than decrease it. That is the point of this amendment. Given the huge weight of regulations that we are dealing with in this House, if something is not included in that list, I am sure that that can be remedied. We are getting very good at remedying those situations. We on these Benches think—and other noble Lords have certainly agreed—that “for example” expands the range and that is not necessary or appropriate, so I beg to move and wish to test the opinion of the House.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, my noble friend will forgive me if I ask for a point of clarification. If Amendment 9 is passed, after the sunset clause is implemented, powers could only be made in relation to a healthcare agreement. However, Clause 3 says that a healthcare agreement can concern either healthcare provided outside the United Kingdom and paid for by the United Kingdom, or healthcare provided in the United Kingdom with another country paying. It does not require reciprocity. Is that quite the restriction my noble friend was suggesting, since it could still be unilateral, not reciprocal?

[Baroness Thornton]

I thank the Minister for tabling this sunset clause; she is quite right to do so. I had not thought of the question asked by the noble Lord, Lord Lansley, but it is a good one. However, we support the amendment.

[Baroness Blackwood of North Oxford]

I thank my noble friend Lord Lansley for his question. This power enables a unilateral scheme, so it does not require reciprocity and is intended to be used only in an emergency scenario where a group of individuals are in difficulty. That is why it is appropriate to sunset it in this way.

I thank the House for its support for the amendment and hope that the noble and learned Lord, Lord Judge, will withdraw his amendment on that basis. I beg to move.

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Moved by

[Baroness Thornton]

11: Clause 3, page 2, line 16, leave out “outside the United Kingdom” and insert “in the European Economic Area or Switzerland”

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[Lord Patel (CB)]

My Lords, I had amendments that the Minister responded to at the Dispatch Box and I accepted her explanation at the time. Now I take the point that the noble Lord, Lord Clement-Jones, is trying to raise, that those principles that she enunciated about data protection included the Caldicott principles. As that reassurance was given at the Dispatch Box, I think it will cover the issue.

[Baroness Thornton]

My Lords, I added my name to the amendment in the name of the noble Lord, Lord Clement-Jones, and I am grateful that he has made the argument so I do not need to repeat it. Of course, I spoke about this in Committee and, like other noble Lords, I was reassured at the time by the explanation given by the noble Baroness, Lady Manzoor. Since then, however, the Bill team has actually made available the Bill data processing factsheet, which is very useful. It explains things in great detail, so I wondered whether it might be a good idea if this was given to everybody involved with this Bill. I do not know whether the noble Lord has seen this, but it is a very useful piece of information. Otherwise, I was satisfied in Committee, and if the Minister answers the questions, I am sure that I will remain satisfied.

[Baroness Manzoor (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Jolly and Lady Thornton, for tabling Amendment 14 and raising the issue of the lawful and responsible processing of data. I start with an apology to the noble Lord, Lord Clement-Jones. My noble friend Lady Blackwood did write to the noble Lord, and I am sorry that he has not yet received the letter. We will endeavour to send him another copy as soon as possible.

As my noble friend Lord O’Shaughnessy said—and I reassure the noble Lord, Lord Patel, that—data sharing is a necessary and crucial aspect of maintaining effective complex reciprocal healthcare arrangements, and the Government are committed to the safe, lawful processing of people’s personal data. There are, as the noble Lord said, safeguards in place in respect of processing personal data for the purposes set out under the Bill, for which the Bill makes express provision. The Bill makes it absolutely clear that it does not authorise the processing of data that contravenes UK data protection legislation.

Data processing will be permitted only for the limited purposes set out in the Bill. Personal data will be processed in accordance with UK data protection law—as the noble Baroness, Lady Thornton, observed—namely, the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the European Union (Withdrawal) Act 2018 from exit day.

I assure the noble Lords, Lord Patel and Lord Clement- Jones, and the noble Baroness, Lady Thornton, that the Caldicott principles are an important part of the governance of confidential patient information in the NHS and a guiding mechanism for organisations in how they should handle confidential patient information on a practical level. The NHS is expected to adhere to these principles.

Since 1999, NHS bodies have been mandated to appoint a Caldicott Guardian. These principles are therefore ingrained in the current operation of the NHS and confidential patient data handled by the NHS for purposes in relation to reciprocal healthcare will be subject to these principles. The principles are consistent with the requirements of the GDPR and a breach of the Caldicott principles would most likely amount to a breach of the GDPR and the Data Protection Act 2018. The principles are not intended for statute but are of real practical and operational importance when confidential patient information is processed. This will be the case when confidential patient information needed for reciprocal healthcare arrangements is processed.

It is also worth noting that reciprocal healthcare arrangements will not normally involve the processing of confidential patient information, except in particular circumstances, such as facilitating planned treatment. However, where this information is processed through reciprocal healthcare arrangements under the NHS, it must comply with UK data protection legislation. NHS organisations, as they do now, will be required to adhere to the Caldicott principles. The data ethics framework that the noble Lord, Lord Clement-Jones, mentioned sets out collective standards and ethical frameworks for how data should be used across the whole public sector, as well as the standards for transparency and accountability when building or buying new data technology. Where the framework refers to personal data, it consistently cross-refers to the principles in the GDPR, which is the relevant legislation that policymakers must consider when processing personal data.

Personal data processed for the purposes of reciprocal healthcare arrangements would therefore also take into account the data ethics framework. In addition, from 1 April 2019, the National Data Guardian will be put on a statutory footing and will therefore be able to issue formal guidance and informal advice to organisations and individuals about the processing of health and adult social care data in England. This will provide patients statutory independent oversight of the use of health data, with health bodies being required by law to have regard to the guidance issued by the National Data Guardian. This is another way in which NHS organisations in England which are processing data in respect of reciprocal healthcare will be monitored and personal data can be further protected as necessary.

It is important to note that express reference to these principles in the Bill would not provide any additional protections for personal data or confidential patient information, as the standard of protections required is the same as the existing data protection legislation already provided for in the Bill. I am grateful to the noble Baroness, Lady Thornton, and others for their support in observing this. Furthermore, as I have said, these principles already apply to NHS organisations and will continue to do so in respect of reciprocal healthcare. As a result, it would be inappropriate to put these in the Bill and I am therefore unable to accept the amendment. However, the Government have listened carefully to concerns surrounding the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill and have tabled an amendment on this issue.

Currently, the list of authorised persons under the Bill includes the Secretary of State, Scottish Ministers, Welsh Ministers and a Northern Ireland department, NHS bodies and providers of healthcare. Of course, over time, public bodies change, are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State the ability to respond to such changes so that systems can operate efficiently and data can follow in an appropriate and lawful way to enable such operation. We propose, however, subjecting any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure. This would allow Parliament the opportunity to scrutinise authorised persons handling personal data while ensuring that the Government have the ability to guarantee that future agreements are administered in the most efficient way possible.

The Government are firmly committed to the safe, lawful processing of personal data, and to ensuring that patients have enforceable protections under data protection legislation. I hope, given my assurances that any data processing under the Bill would comply with the Caldicott principles and the data ethics framework as appropriate, that the noble Lord will feel able to withdraw the amendment.

The noble Baroness, Lady Thornton, kindly mentioned the factsheet. Of course, if it is useful, we would be very happy to put this in the Library. Officials do a tremendous job and I am very grateful to them. I hope, with the assurance I have given noble Lords, and the fact we are providing greater scrutiny, that the noble Lord feels able to withdraw the amendment.

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Moved by

[Baroness Thornton]

17: After Clause 4, leave out subsection (2) and insert—
“(2) The annual report laid under subsection (1) must include, but is not limited to— (a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;(b) all payments received by the government of the United Kingdom in reimbursement of costs of healthcare provided by the United Kingdom to all non-British citizens;(c) the number of British citizens treated under healthcare agreements outside the United Kingdom;(d) the number of non-British citizens treated under healthcare agreements within the United Kingdom;(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of the provision of healthcare outside the United Kingdom made before the passing of this Act; and(f) any and all administrative costs faced by NHS Trusts in respect of implementing healthcare agreements.(2A) The information required under subsection (2)(a) and (b) must be listed by individual country in every annual report.”

[Baroness Thornton]

My Lords, this is a probing amendment to Amendment 16. I am seeking reassurance about the contents of the annual report. I very much welcome the amendment moved by the noble Baroness, Lady Manzoor, which we shall be supporting.

I realise that lists are a dangerous thing to put in a Bill. In proposing her amendment, the noble Baroness covered some of these points. However, it is very important, given the powers that the Bill contains, that information—for example under Clause 2(2)(a) and (b)—must be listed in every annual report by individual countries. We feel that proposed new paragraphs (a) to (f) in our amendment need to be contained within the annual report.

This amendment seeks reassurance that the contents of this report will be consistent with the powers that the Government are seeking in the Bill.

[Baroness Brinton]

My Lords, I support the amendment moved by the noble Baroness, Lady Thornton. Without repeating our debates at previous stages of the Bill, it would be helpful to have reassurance from the Minister that the content of the list in the noble Baroness’s amendment is exactly the sort of detail we need. It is important to reassure people on exactly how any financial arrangements for healthcare will be made.

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[Baroness Manzoor]

My Lords, I am grateful to the noble Baroness, Lady Thornton, for her amendment and to the noble Baroness, Lady Brinton, and my noble friend Lord Lansley for their contributions. I am not sure I want to go down this route. However, if the noble Baroness, Lady Brinton, wants me to write to her to clarify the point she raised, I will certainly do so. From what I have seen, my noble friend Lord Lansley is correct in saying that we have a reciprocal agreement with the countries he mentioned, where money does not exchange hands.

I can reassure the noble Baronesses, Lady Thornton and Lady Brinton, that—as I indicate—the Government have listened to the need for greater transparency in the administration and implementation of reciprocal healthcare arrangements. I welcome the support around the House for our intentions. We understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements. Our initial commitment to the DPRRC is contained in the amendment that the Government have tabled on this matter.

As I said, the government amendment directly addresses concerns raised by noble Lords. I hope it reassures noble Lords and demonstrates that we have listened to the clear request for increased scrutiny of the use of public money.

The amendment of the noble Baroness, Lady Thornton, would ensure that specific requirements are reported on. The detailed content of the financial report should—and could only—be determined, once reciprocal healthcare agreements have been made and technical and operational details are known. We do not know what these agreements may be in future. If we accepted the amendment, we would be placing a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries. This is not appropriate.

Our amendment is a more feasible way of reporting on future healthcare arrangements that does not pre-empt their nature or how they may be implemented, but still allows for transparency and accountability, which the noble Baroness, Lady Thornton, and other noble Lords seek. It is a baseline, and we intend to go further than just reporting on payments, but we cannot provide a statutory obligation to do so.

The Department for Health and Social Care is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, how—and how frequently—that information is exchanged and the reimbursement mechanisms that will govern those new agreements. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner.

Once those administrative details are known, the Government will be able to speak confidently to the specific measures that can be reported on for each country. There is an annual reporting mechanism in the government amendment to provide such detail. I acknowledge that the amendment of the noble Baroness, Lady Thornton, is well meaning and agree with its spirit, but the level of detail proposed in it could constrain or create unnecessary burden when administering future healthcare arrangements that have not yet been negotiated.

It is in the interest of neither the Government nor Parliament to force unnecessary administrative burdens on the NHS, which the amendment could inadvertently cause. The level of detail required in the amendment may create new reporting requirements on front-line NHS services.

As always, should the noble Baroness wish, the Minister or others from the department would be very happy to meet her to talk further about the issues, once we have a clear understanding of future negotiations and how they progress. I hope I have reiterated the Government’s commitment to accountable financial reporting, and that the noble Baroness and other noble Lords feel reassured on our commitment to ensuring that sufficient and appropriate checks and balances are in place on reciprocal health agreements. I hope she will agree that her amendment, which places a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries, is inappropriate. I hope I have reassured her and other noble Lords and she feels able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister. I said from the outset that this was a probing amendment and I therefore beg leave to withdraw it.

Amendment 17 (to Amendment 16) withdrawn.

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[Lord Hope of Craighead]

Perhaps I may add a few words to those of the noble and learned Lord, Lord Judge. I was particularly concerned by Clause 5(3), as the noble Baroness may remember, and am delighted to see it removed because, as worded, it gave rise to a lot of problems. Together with the other amendments proposed, there is considerable improvement and I am most grateful.

[Baroness Thornton]

I tabled an amendment in this group. First, I join the noble and learned Lords and all noble Lords in saying thank you very much to the Government and the noble Baroness for removing these Henry VIII powers, which cause so much heartache in this House—we really do not like them at all. I tabled Amendment 21 because I should like an explanation. Given that our Constitution Committee and the Delegated Powers Committee have several times said that they find the negative procedure rampant in the Bill, and that the British Medical Association has also voiced its concern about legislation being subject to the negative resolution procedure, in the interests of accountability, I need to ask the Minister to explain to the House the justification for negative procedure throughout the Bill. Should it not be subject to the same level of scrutiny as in the European Union (Withdrawal) Act, for example?

[Baroness Blackwood of North Oxford]

I thank the noble and learned Lords for their support for our amendments to Clause 5 and the removal of the Henry VIII operation within the Bill. I shall do my best to continue in the way I have started in this House.

I thank the noble Baroness, Lady Thornton, for her Amendments 21 and 23. The Government recognise that appropriate levels of scrutiny are the hallmark of an effective and responsible parliamentary system and that the processes by which we draft, consider and test legislation must be robust. It is necessary that we look at the nature of the subordinate legislation in the Bill and balance the need for scrutiny against the appropriate use of parliamentary time.

The draft affirmative resolution offers a greater level of parliamentary scrutiny and may be appropriate for particularly significant or sensitive regulations. For example, that is why the Government have agreed that that is appropriate when amending the list of authorised persons able to process data for the purposes of reciprocal healthcare. It is important to understand that, where the UK negotiates a new comprehensive international healthcare agreement, most of the important elements setting out its terms would be included in the agreement itself rather than in the regulations, made under the Bill, that implement it. The regulations giving effect to such an agreement would be much more likely to focus on the procedural, administrative or technical details, such as the types of documents or forms to be used to administer reciprocal healthcare arrangements. Evidence tabled during the course of the Bill’s passage from the Academy of Medical Royal Colleges and the British Medical Association demonstrates that the administration for current arrangements works well. The regulations made under this Bill would be likely to simply provide for the effective and efficient administration of these arrangements.

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Tabled by

[Baroness Thornton]

21: Clause 5, leave out ““this Act which amend, repeal or revoke primary legislation” and insert “section 4(6)”” and insert ““which amend, repeal or revoke primary legislation””

[Baroness Thornton]

I thank the Minister for her explanation, which of course I accept. I am sorry I did not speak to Amendment 23 in my name, but it is consequential on Amendment 21. I think we probably just have to be watchful, so I will not move these amendments.

Amendment 21 (to Amendment 20) not moved.

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Moved by

[Baroness Thornton]

27: Clause 6, page 4, line 15, leave out “International” and insert “European Economic Area and Switzerland”

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Moved by

[Baroness Thornton]

28: In the Title, line 1, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”