Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, these amendments all refer to student unions. We have been concerned about the rather heavy-handed approach to student unions in the Bill. Amendment 16, to which my noble friend Lord Wallace has added his name, seeks to ensure that student unions are fully aware of the regulations with which they must comply. We are particularly concerned in connection with further education student unions, which are likely to be very small and have very few funds available. Presumably they are included in the Bill. The regulations are complex and students will obviously be transitory in post, so simplicity of guidance is essential if they are not to find themselves caught up in unwittingly breaching the rules, as the noble Lord, Lord Triesman, has just set out. This amendment would be a very straightforward way of helping students, and it would be very easy to adopt.

Like others, we support the intention of Amendments 11, 15 and 25 but we remain unsure about how they could be implemented. As the noble Lord, Lord Macdonald, said, some of these actions may well be criminal behaviour, in which case they do not need to be part of the Bill because they should be something else. I liked the tale told by the noble Lord, Lord Grabiner. There are other ways of dealing with hecklers, and ridicule is often one of the very best. We do not see that these amendments should be in the Bill, but some code of practice or regulation would probably be worth it. However, Amendment 16 is well worth government consideration.

[Baroness Thornton (Lab)]

My Lords, we have had a thorough exploration of the issues that would face student unions as a result of the passage of the Bill. Amendment 16 in the names of my noble friends Lord Collins and Lord Blunkett and me, with the support of the noble Lord, Lord Wallace of Saltaire, is not intended to be patronising. It seeks to ask the Government whether they will ensure that the guidance to student unions gives young people all the help and support it can to carry out the duties and responsibilities that the Bill will impose on them. Some of them will be 17, 18 or 19 years old, and this will be something they are absolutely unfamiliar with. That is really all that one needs to say about Amendment 16.

I agree that Amendments 11, 15 and 25 are probably not appropriate for the Bill. As somebody who has been a moderately successful heckler myself, I think they certainly should not be in the Bill.

[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.

Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures

“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.

Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.

The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.

I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.

I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.

The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.

Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.

I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.

Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include

“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.

This must include

“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.

The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.

In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.

I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.

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[Lord Moylan (Con)]

My Lords, I rise to speak to Amendment 21, standing in my name. It dawned on me, as I said in Committee, that the purpose of some noble Lords was not to improve this legislation that has been passed by the Commons but to eviscerate it. The speech just given by the noble Lord, Lord Grabiner, seems to illustrate exactly that.

One of the few things on which I agreed with my noble friend Lord Willetts in Committee was when he said that there were two powerful elements in this Bill that made a real change, one of which was Clause 4. That is why it is a crying shame that the Government have conceded so much in relation to Clause 4; they have effectively turned it into a shrivelled sausage when it could have been something that actually made a real difference. But even with that concession from the Front Bench, it does not seem to be enough for my noble friend Lord Willetts or the noble Lord, Lord Grabiner, who are insisting that even that pathetic thing be removed and crushed altogether.

A principal argument in favour of Amendment 20, tabled by my noble friend on the Front Bench, is that the Government intend thereby to give the universities an opportunity to resolve the problem through mediation and a complaints system. The difficulty is that, in terms, university authorities have expressed repeatedly the fact that they do not consider that there is a problem: they consider it to be an invented problem, or a problem which, if it exists at all, is rare and egregious and can be handled by the universities. Plainly, there are those of us who feel that the universities have failed to handle it, and need to be brought to book.

If the universities genuinely want to give mediation a chance, Amendment 21, standing in my name, gives them the opportunity to demonstrate that. A similar amendment was tabled in Committee by my noble friend Lord Sandhurst, and it is retabled here—I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Strathcarron for adding their names to it. Amendment 21 would retain the substance of Clause 4 as originally proposed by the Government and approved by the other place, but would give to universities the opportunity in each case to ask the court to stay proceedings so as to allow mediation to take place. It would be at the discretion of the court whether to agree to that. I am sure that, if the court thought that there was a prospect of success in the mediations, it would agree.

This is modelled on legal practice in certain other areas where I understand, for example, that the provision and possibility exist—although noble Lords know that I make no claim to be a legal expert on pensions entitlements and so on. So the principle is a workable one: the university can say, “Please will you stay the proceedings while we exercise mediation”. It preserves the substance of the tort in Clause 4 and gives academics, in particular, an opportunity to make their representations in the way that the Government originally envisaged.

I will address the Government’s proposal, because the proposal being advanced by my noble friend Lord Willetts—who I understand may speak shortly—and endorsed by the noble Lord, Lord Grabiner, is to delete the clause altogether. The Government’s proposal would allow those administering the complaints system to indulge in indefinite delay. There is no time limit by which a decision has to be reached in this amendment. My noble friend Lord Howe said something vague about how he thought that 12 months might be something that already existed and might therefore be applied or extended to this activity, but there is actually no time limit by which a complaint has to be resolved which would allow the complainant to trigger the tort. It would remove the possibility of seeking urgent injunctive relief, which is something that could be obtained through the courts. It would push complainants back to a choice between a financially ruinous application for judicial review—because it is financially ruinous for the individual —or continuing with a possibly endless complaints process in which, as has been said by others in this context, the punishment is the process. You are an academic with a career to pursue and you are probably not even in a properly tenured post, but to vindicate your rights you have to undertake a process, extending potentially over many months, which comes to consume your life and, ultimately, to damage your career. It is an unenviable choice, and the tort gave people some other option to allow, potentially, for more rapid relief.

Most of all, the Government’s amendment sends a signal to academics who feel oppressed, feel that they cannot express themselves and feel that they are required to conform to an ideology which they know in their heart they do not endorse that a Government who had said that they were on their side and were taking steps to protect them are no longer interested. That is a very bad signal indeed to be sending. I am sorry to say this, but I think that the Government are being feeble.

[Baroness Thornton (Lab)]

That is true.

[Lord Moylan (Con)]

Now that was a heckle of some value.

To conclude, it might be nice if the Front Bench, which has shown itself capable of endorsing enthusiastically the very laudable Amendment 6, tabled by the Labour Front Bench, could reciprocate by accepting one from its supportive Back-Benchers. If so, I strongly recommend Amendment 21 in my name.

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Moved by

[Baroness Thornton]

26: Clause 9, page 12, line 41, after “provider” insert “or the governing body of a constituent institution”
Member’s explanatory statement
This amendment would make provision for collegiate universities, making clear that a governing body of a college – rather than their overarching provider – should report information under Clause 9.

[Baroness Thornton (Lab)]

My Lords, we have three amendments in this group, which have been proposed by my noble friend Lord Collins, with the support of my noble friends Baroness Royall and Lord Blunkett. They pick up some of the questions that were raised in Committee about transparency and proportionality with regards to overseas funding.

Amendment 26 would make provision for collegiate universities, making it clear that it is the governing body of a college, rather than its overarching provider, that should report information to the Office for Students under Clause 9.

Amendment 27 is intended to make the OfS power to gather information more proportionate, and to prevent commercially sensitive information being subject to a freedom of information request through the regulator having requested it. Several colleges and universities have contacted us about this matter, as I am sure is true for other noble Lords, so it is important that this be clarified at this stage.

Amendment 28 would prevent universities having to disclose sensitive commercial information to the OfS, and prevent independent trading entities—for example, the university press—being forced to violate commercial contracts not governed by UK law, because, of course, many of them have contracts with overseas organisations and institutions.

That is a summary of the amendments, and as my noble friend Lord Collins said at Second Reading or in Committee, the key to addressing these issues is transparency and ensuring that that transparency is proportionate. I could quote to the House many of the problems that have been outlined to us by others who are concerned about this, but because Clause 9 explicitly includes commercial partnerships, it is vital that the Government take on board these concerns and explain, on the record, how they will be dealt with, or provide clarification at the next stage of the Bill. I beg to move.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I support these Amendments. Amendment 26 is self-explanatory, and it would be great if the Government could clarify that the governing body of a college, rather than the overarching university, will be responsible for reporting information to the OfS. It would be very good if the Minister could put that on the record today in Hansard.

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[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.

New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.

The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including

“a constituent institution of the provider”.

The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.

[Baroness Thornton (Lab)]

I think what the Minister said was quite clear, but the concern is whether that is a satisfactory way to proceed for collegiate universities.

[Baroness Barran (Con)]

As I said, it builds on the existing approach to regulation of constituent colleges.

Amendments 27 and 28, also tabled by the noble Lord, Lord Collins of Highbury, seek to reduce the scope of Clause 9. Amendment 27 would allow the Office for Students to seek information only where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. Amendment 28 would remove overseas commercial partnerships from the definition of “relevant funding”, meaning they would not be within scope of the clause.

New Section 69D(1) will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk which the funding may pose to freedom of speech and academic freedom in the provision of higher education. The only way that the OfS can monitor the funding is if it has the necessary information. The power to require such information is linked to the registration condition that already exists under Section 8(1)(b) of the Higher Education and Research Act 2017; that is, condition F3 as described in the regulatory framework that I have already mentioned. Clause 9 is not about the speculative investigation of individual contractual arrangements; it is about routine monitoring of relevant information, at a sufficient level of detail, but no more than that, to allow the OfS to monitor the risk to freedom of speech.

As I said before, Amendment 27 would limit the power to require information from providers to where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. That test sets a very high bar which could arguably never be met. The OfS would not be in a position where it could suspect a breach because it would not have evidence to support that. However, at the same time, the amendment would mean that it would not be able to require information that may provide such evidence, so this would be circular, resulting in the inability of the OfS to obtain information on overseas funding. That in turn would mean that the OfS would not be able to carry out its duty to monitor the risk to freedom of speech that overseas funding may pose. This would mean that new Section 69A would be ineffective and would subvert the whole point of the overseas funding clause.

I should add that the effect of the drafting of this amendment would not be to prevent commercially sensitive information becoming subject to freedom of information requests through the regulator having requested it, which I understand the intention of the amendment to be, noting that the amendment does not refer to that and focuses simply on suspicion of breach. In any event, approved fee cap providers are themselves subject to freedom of information requests, so disclosure of information to the regulator would not result in new exposure to that legislation, and, of course, the OfS already holds sensitive information about providers as part of its overall regulatory role—for example, financial information—so this will not be new.

As for Amendment 28 and the removal of commercial partnerships from the scope of new Section 69A, the Government are of the view that the funding received from such partnerships could pose a risk to freedom of speech and academic freedom. Accordingly, if we do not include commercial partnerships in new Section 69A, we would be leaving a large gap.

The OfS will decide on the level of detail that it will need as regards the information that it will require from providers, liaising with the sector as need be in order to determine that. The OfS will of course consider how to handle any sensitive commercial information that it requires to be provided, but, as I have said, it already holds sensitive information, so this would not be new.

I note that the noble Lord references in his explanatory statement that the clause may force a violation of commercial contracts not governed by UK law. My understanding is that commercial contracts are likely to contain a standard clause dealing with disclosure to regulators, so disclosure under the Bill would be covered by that.

As for the particular situation of a university press, which my noble friend Lord Patten of Barnes referred to, such a body will be in scope only if it is legally part of the provider. In that case, it would not be an independent trading entity. If it chooses to have as its legal status to be a department of a provider, as I am aware is the case for Cambridge University Press and Oxford University Press, it inevitably brings itself within scope of regulation as a part of that provider. I would be more than happy to follow up with my noble friend if he would like to progress that conversation or requires any further clarification on that point.

With regard to the point by the noble Lord, Lord Wallace, about the National Security Bill, as we have heard from earlier amendments, the Government are keen that there is consistency across legislation. That applies in this case also. The noble Lord also hinted at the regulatory burden. He will be aware that the Office for Students is required, when performing its functions, to have regard to the need to protect the institutional autonomy of providers and to the principles of best regulatory practice, including that it should be transparent, accountable, proportionate and consistent.

[Baroness Thornton (Lab)]

I am still not clear how the fishing expedition that the noble Lord, Lord Patten, mentioned would be avoided. That is the point here, is it not? There is a vulnerability and a risk. The Minister needs to explain that to the House—if not now, certainly before the next stage of the Bill—otherwise we will need to return to this. It is not at all clear to me how that risk is averted through the regulation that the Minister has explained.

[Baroness Barran (Con)]

Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—

[Baroness Barran (Con)]

I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will understand that the House is still not satisfied that we are in a safe place with Clause 9. I hope we can achieve that before we get to the next stage of the Bill, but we may need to return to this at that stage. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

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Moved by

[Baroness Thornton]

29: Clause 10, page 15, line 11, at end insert—
“(1A) The appointment of the Free Speech Director is subject to a confirmatory resolution of the relevant Select Committee of the House of Commons. (1B) The person appointed as the Free Speech Director must present a report to Parliament no later than 31 December 2023, and once a year thereafter.(1C) The report must include an assessment of—(a) the impact the role is having,(b) the implementation of the Higher Education (Freedom of Speech) Act 2022, and(c) the state of freedom of speech at the providers encompassed by that Act.”

[Baroness Thornton (Lab)]

Noble Lords will know that we have galloped around the director of free speech’s appointment several times at Second Reading and in Committee. I thank the noble Baroness, Lady Bennett, and my noble friend Lord Blunkett for their support. The noble Lord, Lord Wallace, and I are obviously still at one in our concerns about this matter.

Amendment 29 would subject the appointment of the free speech director to confirmation by a Commons Select Committee and compel them to report to Parliament every year on the impact their role is having, the implementation of the Bill and the state of freedom of speech at the providers. This is important because if the Bill is to do what we want it to do—deliver protection and support for freedom of speech—then the director who is responsible for that, the regulator, should be accountable to Parliament. The fact that this person sits on the board of the Office for Students, and is therefore only the chair of the board accountable to Parliament for that work, is not satisfactory. This is too important to be delivered without having any accountability to Parliament for the director of freedom of speech, both on their appointment and the work that they do.

I am not going to repeat everything I said in Committee and earlier stages about this. I think this legislation was pre-empted by the appointment already being made—I am not absolutely certain it has happened yet, but I think that the interviews were taking place during the summer—and that is a shame, but we can rectify that to a certain extent by making this person accountable to Parliament. I beg to move.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 30, which is an alternative version, and I wish to add my concerns. The Minister will know that there has been a lot of controversy about the overall public appointments process. There has been criticism in the press and from people who have been involved in acting as independent advisers on public appointments, in general and in particular.

The appointment of the current chair of the Office for Students was particularly controversial. There was criticism that the balance of the appointing committee appeared to be much more political than expert, and that the person appointed appeared to have no previous qualifications or expertise for the job, beyond having been a Conservative MP who had lost his seat and managed Boris Johnson’s campaign to be Prime Minister. That does not give us great confidence in the appointment of a freedom of speech champion; it also lessens confidence in the sector that the appointment process had been started so early. The Minister will be aware from the letter she had from a number of leading academics that this is one of their active concerns.

Given the particularly controversial nature of this appointment, if you want to achieve a degree of public confidence among those who will be affected by it in universities and elsewhere, it pays if it is seen to be a fair, open and reasonable process. That is not the case at present, and rumours of the sort of people who might be appointed—the names scattered around include those of one or two other Members of this House—would not at all assure the sector, so this is a particularly important process and appointment.

I ask the Minister to give us an assurance, as strongly as she can, that Universities UK, the Russell group and other stakeholders will be consulted about the process and the qualifications needed in such a person; that the appointing committee will be appropriate to the task to be undertaken; and that the Government will ensure, as far as possible, that the person appointed commands the confidence of those whom he or she will be regulating. That is not too much to ask but, against the context of what we have seen with public appointments in the past three or four years, it is a necessary ask. I hope she will be able to take us some way in that direction.

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Of course, members of the OfS board regularly appear before the Education Select Committee; for example, the chair and chief executive both appeared before it in May 2020 in relation to issues arising from the pandemic and, more recently, in September, the chief executive was a witness in relation to controversial research content and free speech.

[Baroness Thornton (Lab)]

Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?

[Baroness Barran (Con)]

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

[Baroness Barran (Con)]

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Baroness Chakrabarti (Lab)]

My Lords, I forgot to declare my interests as a visiting professor of practice at the LSE and in receipt of research services from a PhD student from King’s College London. To support the noble Lord, Lord Willetts, if this is becoming such a difficult area, it will be tempting for regulators that “may” issue guidance not to do so in a particular contentious area. We go down this road or we do not, to some extent. If there are rows between competing minority interests and around particular foreign policy issues, then if I were a regulator, it would be all too tempting to sit back. That has sometimes been the case in the past, whether with the police or regulators. That is in support of the rather tighter duty that the noble Lord, Lord Willetts, proposes to put on the regulator.

[Baroness Thornton (Lab)]

My Lords, I am not going to say very much because this debate has covered most of the ground that we need to cover on how this issue should be decided. However, I always listen to the noble and learned Lord, Lord Hope, very carefully. When he says that simplicity is best, that is probably right. We definitely find Amendments 33 and 54 to 56 the more attractive amendments. As my noble friend Lady Chakrabarti said, they are the common-sense amendments. I am more attracted to them than to Amendment 31 in the name of the noble Lord, Lord Moylan.

This debate has shown, and I agree with those who have said so, that while the words in the noble Lord’s amendment are of course very laudable, actually it is the words that go in the Bill and create the law that are important. That is our job here in this House. It is certainly not our job to put words into legislation that might create more confusion and proclaim values at this stage. The Minister will probably tell us how the Government feel about that. My noble friend Lord Smith outlined in the earlier debate what a hard job the leaders of our universities have in balancing their duties and rights. That was amplified by the noble Lord, Lord Willetts, when he spoke to his amendment.

In reflecting on the remarks of the noble Lord, Lord Moylan, I do not think that this amendment would have stopped what happened to Kathleen Stock. That was a failure of the leadership of her university to fulfil their duty of care to her and their need to promote free speech in their institution. This amendment would not have stopped that, because it is to do with how that university conducts itself.

[Lord Grabiner (CB)]

My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.

I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.

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[Lord Collins of Highbury (Lab)]

I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.

This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.

The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.

The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.

I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.

I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.

[Baroness Thornton (Lab)]

Copyright? Intellectual property?

[Lord Collins of Highbury (Lab)]

Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.

I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.

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[Baroness Thornton (Lab)]

My Lords, my main regret about this debate is that my noble friend Lord Triesman did not mention the London School of Economics, which is where I went. While we were having this debate, I looked it up and there are hundreds of societies at the LSE. I enjoyed the fact that, if you look at the history of the student union—the student union at the LSE is the oldest in the country—you find that I feature in there, having led occupations of the director’s studio for the nursery campaign in the early 1970s. I was trying to think how on earth we would have coped with this legislation when I was a member of the student union executive at the London School of Economics in the early 1970s.

My noble friend Lord Triesman was quite right. As the noble Lord, Lord Smith, said, I do not think what is in the Bill at the moment meets the test of what will actually work and be able to be delivered by our student bodies. It is too complex. My understanding is that student unions also have the Charity Commissioners as part of their regulation, so that adds extra complexity to this issue.

I think I agree with other noble Lords that the Government need to look at this issue again. The noble Baroness’s amendment might provide a good basis for something that is simpler and which can actually be delivered by 18 and 19 year-olds. I look at the Bill team, and some of them are not that far away from having been rather young. They need to think back to what they would have done in their student days and how they might have been able to protect the right of freedom of speech then.

This is one of those occasions when the Government might need to look at this again and ask whether it will work as it is intended. Have discussions taken place with student union representatives in a process of asking them how this will work and whether it will be able to be carried through?

In case noble Lords are looking it up, my name does not appear but I did lead the occupation of the director’s studio for the nursery campaign.

[Earl Howe (Con)]

My Lords, Amendment 47 in the names of the noble Baroness, Lady Garden of Frognal, and her colleague the noble Lord, Lord Wallace of Saltaire, seeks to change the way in which student unions are regulated under the Bill.

This amendment would remove the duties on student unions in Clause 3, and instead add them to the duties on providers under the Education Act 1994. The addition of these requirements to that Act would mean that the duty would be on the governing body of the provider to

“take such steps as are reasonably practicable to secure”

the various requirements set out in the amendment and no direct duties would be imposed on student unions. Amendment 47 would therefore make Clause 7 unnecessary. I note the wish of the noble Baroness to remove the clause from the Bill altogether.

Extending the legislative framework to student unions at approved fee cap providers under Clause 3 is a significant step, which fills a gap in the current legislative framework. Freedom of speech on our campuses is an essential element of university life. Student unions play a vital role in this, providing services and support, representing their members and working closely with their provider. It is important that these bodies are accountable for their actions.

There are examples of where student unions have failed to secure freedom of speech. Notably, the student union at Swansea University failed to support members of the university’s Feminist Society, who were threatened and abused for supporting Kathleen Stock—a name I am sure we recognise by now. Rather than protect their freedom of speech, the student union removed the society’s email account and profile page from its systems, denying this group an important platform for reaching others. This incident illustrates the need for action to ensure that student unions are subject to duties on freedom of speech, since we cannot allow that sort of behaviour to continue unchallenged and unregulated.

I noted the support for the amendment expressed by the noble Lord, Lord Smith of Finsbury, but if we took the approach proposed in Amendment 47, the duty would be on the provider to take reasonably practicable steps to secure the various freedom of speech obligations, as I have said, but there would be no requirement on student unions to comply with those requirements. If they did not, this would potentially only result in an internal dispute with the provider.

Although the Charity Commission is involved in regulating student unions which are charities, that is only in respect of charity law. There would also be no oversight of whether or not providers comply with the duty imposed on them. This means that there would be no enforcement or regulatory action taken if they failed to do so.

Finally, and perhaps most importantly in the context of the new regime that this Bill will establish, there would be no means for individuals whose freedom of speech has been improperly restricted to seek recompense. Since the Bill will impose new duties on student unions, it is also necessary that mechanisms are in place to ensure that compliance with the freedom of speech duties of student unions is monitored effectively and that action is taken if those duties are infringed upon.

The noble Lord, Lord Triesman, read into these provisions a burdensome requirement placed on every single student society in every university in England. I make it clear to him that the duties are on student unions and not student societies, even though they may be affiliated with their student union. In practice, this means that only the student union—that is to say, one union per provider—will be regulated.

Clause 7 therefore extends the regulatory functions of the Office for Students so that it can regulate these student unions. This new provision will require the OfS to monitor whether student unions are complying with their duties under new Sections A5 and A6 as inserted by Clause 3. If it appears to the OfS that a student union is failing or has failed to comply with its duties, it will be able to impose a monetary penalty.

[Baroness Thornton (Lab)]

I need some clarification from the noble Earl. I suspect that most of the things that have caused problems have been organised by the societies and all the organisations that are part of the student union. At the LSE, we had a rugby club that invited strippers to its annual dinner—you can imagine how well that went down—but it was not the student union that dealt with that. It was not its job to deal with what the rugby club was doing. This was a very long time ago, but lots of the things that we have been calling in aid in this Bill have not been organised by student unions. Some will have been, but most will have been organised by their constituent parts—the societies and other parts of the student union.

[Earl Howe (Con)]

I take the noble Baroness’s point. Those societies will be expected to abide by a code of practice which will be promulgated to all students. While the societies will not be subjected to the full extent of the regulation that I have been talking about, expectations will be placed on them. I cannot yet tell the noble Baroness what will be contained in the code of practice but, as I have mentioned, that code will receive appropriate publicity.

Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

Finally, I want to respond to the noble Lord, Lord Stevens, because, notwithstanding the comfort offered by the noble Baroness, Lady Fox of Buckley, I think he has a point. The interaction between the provisions in the Bill as drafted and the quality of research and expression of research has not been adequately considered. As I read the Bill, the academic who is put under pressure for the quality of their science being inadequate or anti-science will now have access to the new statutory tort. Of course, if they lose their job, that is a real loss. That problem will not be solved even by the proposition of the noble and learned Lord, Lord Etherton, about pecuniary loss because, by definition, the academic who was putting out bad science or non-science and was not standing up to refereed scrutiny will have pecuniary loss and is going to say, “I deny the climate catastrophe”, or “I deny any human contribution to the climate catastrophe”, or “I deny that tobacco has any effect at all on cancer, and that is my belief, that is my freedom of speech, I am a member of this university, you have put me out of a job and I am suing.” I do not see anything in the Bill that helps potentially beleaguered universities with that challenge.

[Baroness Thornton (Lab)]

My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.

I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.

[Earl Howe (Con)]

My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.

Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.

A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.

The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.

--- Later in debate ---

[Lord Strathcarron (Con)]

My Lords, I speak to my Amendments 17, 18, 19 and 21. We have already debated Amendment 17 at some length. I hope that Amendments 18, 19 and 21 are uncontroversial; I merely hope to tighten up and future-proof for anything that comes in the future. I believe that they address some concerns raised in an earlier group by the noble Lords, Lord Collins of Highbury and Lord Triesman, and the noble Baroness, Lady Fox of Buckley, and I hope they prove agreeable.

[Baroness Thornton (Lab)]

I briefly say that I think the noble Earl has three things he needs to address in this group of amendments. The first is academic freedom, which has been referred to before. My noble friend Lord Triesman has brought to the Committee an amendment that deserves consideration, because I think it helps us. The second issue has created quite a discussion—what is the interface between the terms and conditions, the values and employment of an academic and their speech? I am not going to comment on that, frankly; the noble Earl is going to have to tell us what the Government think about that. The third issue, of course, is whether the other issues raised in this group affect the practicality and appropriateness of universities’ appointment procedures. I am not sure at all that that is the case. Those are the three issues I think the noble Earl will have to address, probably the next time the Committee meets.

Debate on Amendment 12 adjourned.

Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank all noble Lords who will speak in today’s debate and all the organisations and the Library for their excellent briefing on the Bill.

I also thank the Minister for presenting the Bill with his usual clarity and elegance, expressing many aspirations that many of us would agree with about free speech. Having worked with the noble Earl for many years, both as a Minister and in opposition, revising and improving many pieces of legislation, I have come to admire his intellectual acumen and political nous. I fear that he will have to bring both to bear in great measure to justify and succeed in getting what is regarded by many as a shoddy piece of legislation—at best, unnecessary and, at worst, divisive—through your Lordships’ House in its present form.

Labour, unlike the Conservatives, over many years, has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression. It seems to us on these Benches that, as higher education and our students move out of the difficult and sometimes traumatic time that Covid brought, the Government should be addressing the immediate issues of rent, getting a job and the rise of mental health conditions among our young people. Three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. Surely these matters are the priority, rather than focusing on a row largely manufactured in Whitehall based, at best, on flimsy evidence. A review of 10,000 events revealed that only six were cancelled and four of those because of faulty paperwork.

The Commons Minister, Michelle Donelan was asked what evidence lies behind her statements on ConservativeHome that there is

“a cluster of institutions that are in the grip of a close-minded, intolerant ideology—and at the centre of this cluster lie our universities.”

She said that she believed it to be true. This seems a flimsy base for legislation from a Secretary of State who says that he believes in an evidence-based approach. Can the noble Earl please tell the House to which “institutions” his honourable friend was referring? As my honourable friend Kate Green MP said at Second Reading over a year ago,

“it is an evidence-free zone when it comes to underpinning the concerns that he says it is addressing.”—[Official Report, Commons, 12/7/21; col. 53.]

The lack of an evidence base is one challenge the noble Earl will have to face as the Bill progresses through your Lordships’ House, but there are others. There is an understandable concern that the Bill may undermine existing protections against discrimination. That it introduces a new mechanism that some believe may allow hate-filled individuals to sue a university if they feel that their opinion has not been adequately heard may allow extremists, racists and Holocaust deniers to have a voice and a much-craved platform on our campuses. We will need to test these things during the passage of the Bill.

Additionally, we need to ask how the resources to fight those challenges will be found. We will test the effectiveness of the new clauses added by the Government. From these Benches, we will seek to amend the Bill to require an independent appointments process for, and prevent party-political donations from, the new, to-be-appointed director of free speech. We will seek to broaden the definition of academic freedom to include, for example, criticism of institutions, conducting research and joining a union. We will seek to add a sunset clause, so the legislation expires after three years unless an extension is approved through an affirmative SI. We will seek to require the Office for Students to consider competing freedoms when investigating free speech complaints and seek to prohibit the use of non- disclosure agreements by universities in relation to sexual harassment.

I want to raise with the noble Earl the appointment of the director of free speech. This job was advertised on 13 June or thereabouts, which is, of course, the date that the Bill completed its passage through the Commons but had yet to reach your Lordships’ House. The closing date for applications is 13 July—so be quick if you want to apply for this almost £100,000-a-year job. Can the noble Earl address the question of pre-emption? When will the appointment be made if the closing date is 13 July? Will it before the position has been agreed by Parliament? What parliamentary scrutiny will the appointment receive?

Looking at the job description—which I recommend noble Lords to read—the position seems to require no legal background. I hold no brief to create work for lawyers, but surely if we are to have a director of free speech, a person tasked with the job of settling contentious cases, it must be in all our interests for that person to have a broad understanding of the sector, the legal framework around free speech to which I have referred and the sector’s regulatory framework, but these elements are not essential in the job description.

In conclusion, the issue here is evidence, and that is why these Benches have deep reservations about the unintended consequences of this Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in our academic community. I have great hope that the many noble and learned Lords and the phalanx of chancellors, vice-chancellors and heads of colleges who inhabit your Lordships’ House will cast their eyes on the Bill and between us we might knock it into some sensible shape. At the least we can do no harm, and if we are very successful, we may enhance free speech in higher education. I look forward to the debates to come and the next stage of the Bill.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I have in my hands the latest cancer waiting time figures. It is very unfortunate that, despite the hard work of NHS staff, every single metric was worse in January than in December. It therefore seems a great pity that not all patients who have a diagnosis of this dreadful disease of pancreatic cancer can get this medicine, which can improve and even extend their lives.

I well remember a senior, well-loved and well-respected Member of the Labour Benches who died of this dreadful disease. We lost him far too early, because this disease takes people very quickly. Anything at all the Minister can say to encourage us that this effective and approved medicine can be made fully available to everybody who needs it—depending on the conditions, as outlined by the noble Baroness, Lady Finlay—would be helpful.

[Baroness Thornton (Lab)]

My Lords, can I say how much I support this suite of amendments? I congratulate the noble Lord, Lord Moylan, for tabling and speaking to them. This most lethal of killers has been defying science—or we at least have not had enough investment in the science—for many years. This means the survival rate is still not as it should be and as it is for other cancers. Anything that pushes the NHS and research community to tackle this and to set the targets that are needed to do so is very welcome. I look forward to what the Minister has to say.

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

I thank noble Lords for bringing forward this further debate on the subject of pancreatic cancer services. I begin by confirming that the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement. However, I hope noble Lords will understand that, during a live tender, the document is commercially sensitive and cannot be shared beyond the commissioning team, as this would risk jeopardising the procurement process. While I recognise that it may be disappointing that I am unable to confirm the timeline for the pancreatic cancer audit until the procurement process is completed, I can say that the future contract to follow the procurement process in relation to the clinical audits is anticipated to start this autumn.

The normal process for a new national audit is a year of development and set-up, followed by data collection and analysis. The publication of the data would then follow. However, on a more positive note—and I hope my noble friend Lord Moylan considers this response less dusty—I can confirm that, alongside the audit of cancer services, important actions are being taken to ensure that clinicians are able to take informed decisions. NHS England and NHS Improvement have ensured that guidance on pancreatic enzyme replacement therapy is shared with cancer alliances to disseminate to clinical teams in their area. NHS England and NHS Improvement will also continue to work with Pancreatic Cancer UK to raise awareness among the clinical community about the value of PERT for many patients with pancreatic cancer.

Noble Lords will be aware that NICE has a clinical guideline, NG85, recommending that PERT should be offered to patients with inoperable pancreatic cancer, and that NICE has also included PERT in its quality standard on pancreatic cancer. NICE clinical guidelines are developed by experts based on a thorough assessment of the available evidence, but they do not replace the judgment of healthcare professionals. They are not mandatory, but they represent best practice. The NHS is expected to take them fully into account in ensuring that services meet the needs of patients. Ultimately, the use of PERT in individual cases is for clinical decision-making, following a discussion between doctor and patient. As such, national targets would not be appropriate.

My noble friend asked another question on data. PERT prescription data is already published online through the English prescribing dataset. This shows that levels of prescription have been rising. The data does not currently differentiate between prescription for pancreatic cancer patients and for people with other conditions. However, NHS England and NHS Improvement will consider PERT prescription data during the scoping of the pancreatic cancer audit.

I end by thanking my noble friend Lord Moylan for his constructive engagement and for pushing the Government on this. But I hope that the reassurances I have given are sufficient to persuade him to withdraw his amendment.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

The Bill misses an opportunity to strengthen the CQC’s financial management regime for large providers. At present, that regime is light-touch and largely reactive, with limited capacity to monitor providers and scrutinise their accounts. Bolstering the CQC’s capacity would make it more possible for it to intervene proactively, before a provider fails. This is a big and serious issue and there is much to do but I hope that these amendments will provide a much-needed first step.

[Baroness Thornton (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Bennett, for returning us to this issue because I have reflected on the noble Earl’s remarks when we discussed this in Committee. He made an impressive contribution in that it listed many of the safeguards that the Government say are in place to deal with what are clearly very unsatisfactory situations in the care sector, which affect the most vulnerable in our communities.

My question to the noble Earl is: does he really believe that the Government are dealing effectively with the problems that face this sector, which is dysfunctional—I thank the noble Baroness for reminding me that I said that—and places insecurity in the hearts of some of the most vulnerable and eldest members of our communities? If all the things that he listed the previous time we discussed this were working, why would we return to this and say that those safeguards are clearly not working? Asset stripping is clearly still taking place. There are huge dangers to this sector and the noble Baroness has brought this back to the House because of them.

[Earl Howe (Con)]

My Lords, the noble Baroness, Lady Bennett, has brought us back to issues that we debated in Committee and I understand her concern about propriety in the deployment of public funds. I have no problem with the idea that Ministers and public servants should do all they can to ensure that public money is used effectively for the greater good. That is what they are obliged to do anyway. However, I do not feel that this duty is best served by accepting the amendment, even though it has been newly worded.

In my answer in Committee, I described how during the pandemic we learned about the importance of speed and flexibility in the way that we respond to a crisis. I suggest that this amendment would impede the Government’s ability to provide emergency support to critical providers. That does not mean handing out money willy-nilly. Any use of the power will be subject to the usual scrutiny and safeguards around the use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments.

There is a fundamental problem with the proposition that the noble Baroness has advanced. The amendment refers to “day-to-day operations” but there is no single accepted definition of that term. Any company could find itself excluded from receiving critical funding depending on how its accounts and finances are structured. For example, there are potential scenarios where the Government could ask providers to carry out activities at pace which may involve them in creating unavoidable debts, for which they would need reimbursement. In that situation there would be nothing improper in any government funding being used to repay that debt, but even if there were no such debts involved, the problem remains that any private company would be prevented paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends. I understand the concerns of the noble Baroness about unscrupulous people and fraud, but the amendment as worded is not well conceived.

Turning to Amendments 146 and 147, again, nobody can be comfortable with the idea of rogue investors or unscrupulous care providers. However, I made clear in Committee that the Government are committed to ensuring that we have a sustainable care market. We have already set out a number of planned actions, most notably in the People at the Heart of Care: Adult Social Care Reform White Paper, to achieve this objective. Noble Lords are aware that the adult social care sector is complex, as it contains both the public and the private sector. One thing that the two sectors have in common is the need to maintain not only quality of care but financial stability. To ensure that these businesses provide the care that they are required to, local government and regulators, such as the Care Quality Commission, monitor, regulate and support the sector.

As I mentioned in Committee, the CQC has market oversight responsibility, and in discharging those responsibilities, it performs comprehensive financial sustainability analysis for each provider in the scheme, including some private equity ownership structures. Debt leverage and capital structure are important components of this work, but consideration is also given to current and future trading trajectories, cash headroom and market positioning.

We also have in place the CQC-operated market oversight scheme, which monitors the financial health of the largest and most difficult-to-replace providers in the adult social care sector, ensuring that people’s care is not interrupted due to provider failure, which must be a proper concern. Since its establishment in 2015, there have been no major business failures of care providers that have resulted in the cessation of care.

We have always been clear that fraud is unacceptable. We are acting against those abusing the system; 150,000 ineligible claims have been blocked on the Covid-19 schemes, and £500 million was recovered last year. The HMRC tax protection task force is expected to recover an additional £1 billion of taxpayers’ money. Therefore, even if cash is diverted fraudulently, there is still the ability of the authorities to recover such cash.

I assure the noble Baroness that the Government will continue to keep the measures which I have outlined under review but, at present, we do not believe that the proposed and very prescriptive amendments are either proportionate or necessary. I hope she feels that she can come back to this matter at a future date. With that, I am clear that these amendments should not be accepted.

Health and Care Bill

Baroness Thornton Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Lord Blunkett (Lab)]

My Lords, I will take to heart the strictures of the Government Chief Whip and see whether I can speak in a minute without repetition. Way back in the 1970s, I was chair of social services in Sheffield, at a time when all residential care was under the auspices of the local authority. We then believed that what we were doing was in the interests of the people being cared for, the families that required support and the care workers. I want to make a very simple point: as well as the taxpayer being exploited, as well as those being cared for being exploited, we are also seeing the exploitation of workers on the lowest possible pay whom we are desperately trying to recruit, and we owe it to all those people to get this right.

[Baroness Thornton (Lab)]

I thank my noble friend Lord Blunkett for speaking very briefly and giving us some very wise words. The noble Baroness, Lady Altmann, is absolutely right that the system is inadequate. I am grateful to the noble Baroness, Lady Bennett, for tabling these amendments and opening up this discussion. They address the issue of ownership of the organisations that provide social care. We know that almost all social care provision, residential and domiciliary, is not in the public sector and has not been for some time. We also know that the current system is wholly dysfunctional, as the noble Baronesses, Lady Bennett and Lady Brinton, said. It does not work for the service users, for the staff or even for the providers, which go bust fairly regularly, as the noble Baroness, Lady Altmann, described. Of course, it used to be a money spinner for hedge funds and others that got involved to asset strip and leverage profits and remuneration at the expense of service users, both individual self-funders and taxpayers and ratepayers who were paying for other residents.

I have always taken the view that this sector would benefit from an enormous influx of social enterprises and co-operatives. Where social care, domiciliary care and residential care are provided through social enterprises, community enterprises and co-operatives, they are sustainable, they keep their staff and they invest their surpluses back into their social purpose, so everybody gains. To suggest that the Government will fix social care through this legislation is laughable, because the existing market solution cannot be fixed. So we have sympathy with these amendments and fully understand the intent that the noble Baroness, Lady Bennett, outlined for us.

I am interested to know how the Minister will respond, because it is quite clear that something must happen in this sector because it is so unsatisfactory. I suspect that if the Government are not going to move on this, we may have to return to this later in the Bill.

[Earl Howe (Con)]

My Lords, I appreciate the way that the noble Baroness, Lady Bennett, introduced these three amendments and I am grateful to her for the clear explanations she gave for them. I will take them sequentially, beginning with Amendment 237.

This amendment seeks to place restrictions on the power for the Secretary of State to provide financial assistance to bodies engaged in the provision of social care services. It would prevent use of the power for the purposes of repaying debt, paying interest on debt and making distributions to shareholders.

To begin with a general but important point, it is incumbent on all Ministers and public servants to ensure that public money is used effectively for the greater good, and that purpose is implicit in the power contained in Clause 141. However, I fear that this amendment could make the proposed power unworkable in practice. If we look at the way the amendment is worded, any adult social care provider with a trade creditor of any kind would be caught, as would any organisation with an overdraft facility designed to support day-to-day working capital. A company’s working capital, by its nature, is money that is used to fund day-to-day operations in general, and one cannot associate a particular pound with a particular business activity. Furthermore, any private company would be prevented from paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends.

The pandemic has demonstrated the need for speed and flexibility in providing support to the care sector. We do not intend to use the power in the way the noble Baroness fears, but we have designed it in such a way as to provide the maximum flexibility to respond in times of crisis; each individual case will be considered on its merits. Placing additional restrictions through this amendment would impede our activity to provide emergency support to critical providers.

Any future use of this power, whether for emergency purposes such as those we have seen in the pandemic or to deliver specific policy on a national basis, would be subject to the usual scrutiny and safeguards around use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments. As with any use of public resources, the power would be exercised with a clearly defined purpose, with strict criteria applied in practice relating to the use of the funding to ensure that it delivers maximum value for money.

I turn now to Amendments 238 and 239. Amendment 238 seeks to undertake a review of the financial regulation of companies providing social care, with a view to ensuring that it supports the effective provision of social care. Amendment 239 aims to increase the financial transparency of offshore corporate groups providing social care.

We are committed to ensuring that we have a sustainable care market. This was made clear in People at the Heart of Care: Adult Social Care Reform White Paper, published in December. It is vital to ensure that people have a wide range of high-quality care and support options to choose from, supported by a workforce that is empowered to deliver high-quality care. With that in view, we have already set out a number of planned actions to support the effective provision of social care services.

As the Committee will be aware, under the Care Act 2014 it is the responsibility of local authorities to shape their local markets to ensure that a diverse range of high-quality, sustainable care and support services is provided. We consider that they are the ones best placed to understand the needs of their local populations.

Maintaining quality and high standards is vital, and that means regulation. The Bill introduces a new duty on the CQC to assess local authorities’ delivery of their adult social care responsibilities. Alongside existing duties on the CQC to monitor, inspect and regulate health and care services, this will drive up quality so that everyone can access the care they need, wherever they live.

We are also committing £1.4 billion of funding over three years to support local authorities in moving towards paying providers a fair cost of care. This funding will strengthen the capacity of local authorities to plan for and execute greater market oversight and improved market management to ensure that markets are well positioned to deliver on our reform ambitions, to address underinvestment and poor workforce practices and to provide a stable base for reform of adult social care.

In addition, we are investing at least £500 million over the next three years to begin to transform the way we support the social care workforce. This funding will go towards continuous professional development, so that people can experience a rewarding career with opportunities to develop and progress, now and in the future.

The noble Baroness stressed the importance of transparency in the market and I understand the points she made, particularly about overseas-registered companies. The Department for Business, Energy and Industrial Strategy is continuing to finalise the draft registration of overseas entities Bill, which underwent pre-legislative scrutiny in 2019, to align with the broader reform of Companies House and our plans to verify the data it holds. The Joint Committee concluded that

“this draft legislation is timely, worthwhile, and, in large part, well drafted.”

In their July 2019 response, the Government accepted many of the committee’s recommendations, such as ensuring that Companies House is given adequate resources and introducing a reporting facility. The Government have been exploring how best to implement these recommendations and others, such as civil sanctions. We are also considering how verification will work with this register. The Department for Business, Energy and Industrial Strategy is amending the draft Bill in line with the committee’s recommendations and will introduce it when parliamentary time allows.

As the noble Baroness, Lady Tyler, said, adult social care is a mixed economy. The majority of adult social care providers are private companies. Like other sectors, many private businesses employ debt as an ordinary part of their capital structures or funding arrangements.

--- Later in debate ---

Debate on whether Clause 142 should stand part of the Bill.

[Baroness Thornton (Lab)]

My Lords, Clause 142 seeks to amend Section 50 of the Health Act 1999 in relation to making changes to the professional regulatory landscape through secondary legislation. It will simultaneously widen the scope of Section 60 and extend the Secretary of State’s powers. At the moment the Government have powers to bring new professions into regulation or make modifications through secondary legislation but can remove a profession from regulation only through primary legislation. The clause enables the removal of a profession through secondary legislation and makes it clear that a profession would be removed from regulation only when it was no longer required for the purpose of protecting the public.

I went and had a little look at the record. I am sorry the noble Earl is no longer here today, because in 2009 I was in Grand Committee, as the then Health Minister, and we were discussing the regulation of psychologists. I have to tell the Committee that that was not an uncontroversial matter. We had gone through whole series of regulatory reforms that year, as noble Lords who have been following these matters will be aware. I said at the time that

“the reforms set out in this draft order aim to enhance public confidence in the ability of the healthcare regulatory bodies to protect the public and deal with poor professional standards.”—[Official Report, 5/5/09; col. 510.]

The debate we had that day included the noble Earl, Lord Howe, who, at the time, was in my position now, as it were. He also welcomed the fact that the regulatory regime was in existence and, although he rightly had questions about the regulation of psychologists, which was indeed a controversial matter at the time, he did not question the need for public scrutiny of professional regulation.

That is why I have tabled the Motion that clause 142 not stand part. I am left wondering what exactly the yardstick will be, what criteria will be used to determine when there is no longer a need to protect the public and who will decide those criteria. Does professional regulation not also help to facilitate consistent common standards? What is lacking at the moment is any sense of the principles that will be allowed to inform decisions to bring professions into regulation or remove them. Will patients’ organisations, representative bodies or regulators be consulted on any new criteria applied? I can tell the Minister that in 2009 we went through weeks and weeks of discussion and consultation about every single independent regulatory body that this House helped to establish.

I suggest that the system works and there is absolutely no need to change it, though perhaps the Minister can tell me why there is such a need. Moving the power to abolish professions to secondary legislation is not putting scrutiny and transparency at the forefront. I have to say that doing so without putting any indication on the record of which professions are being considered does not instil confidence that this power grab has been considered properly or is in fact needed at all. The implications for the devolved nations, particularly Scotland, are also important but it was clear from discussions in another place that they had not been addressed. Perhaps they have by now, and the Minister would like to tell us what the outcome of that consultation is.

At the risk of repetition, there is a consistent theme in the Bill of seeking greater powers for the Secretary of State without parliamentary oversight, for reasons that are quite unclear. I beg to move.

[Baroness Pitkeathley (Lab)]

My Lords, I declare an interest as a former chair of the Professional Standards Authority. I was happy to go down memory lane with my noble friend on the Front Bench.

When thinking about professional regulation, we always have to bear in mind—I hope the Minister will be able to convince the House that this is what the Government bear in mind—the protection of the public. It is never about the glorification or protection of a profession; it is always about the protection of patients and the public.

The Professional Standards Authority developed the concept of right-touch regulation, whereby you identify the problem before the solution, quantify and qualify the risks, get as close to the problem as possible, focus on the outcome and use regulation only where necessary. I draw the House’s attention to the very successful project of accredited registers, which the Professional Standards Authority has developed in order to have, as it were, regulation at a lesser level than the very tight regulation that is necessary for some professions. You should keep it simple; the system is far too complex at present. You should check—as we always must with legislation, but it seems to me that we do it far too seldom—for unintended consequences. You should also review and respond to change, and the Government are doing just that with the proposals.

However, I must echo the caution of my noble friend on the Front Bench regarding the new powers for the Secretary of State to deregulate as well as regulate professions. We know that the risk profile for different occupations changes over time and a more agile method of responding is sometimes necessary. I hope that is what the Government have in mind. However, I emphasise, and I hope the Minister will reassure me on this, that a commitment to keeping patients safe must guide any decisions made to deregulate professions. There must be a robust and independent process to ensure that decisions are made after a clear assessment of risk—and I emphasise “independent”.

If the Secretary of State has the power to abolish regulators by secondary legislation, will there not be a threat to the independence of the regulators? If they know that the Secretary of State can abolish them at a stroke, as it were, might they become too focused on pleasing—or, rather, on not antagonising— whichever Government are in power, instead of, as I have stressed, working always and solely in the public interest? I hope the Minister will assure the House that that is the Government’s intention.

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

I thank all noble Lords who spoke in this debate. As a number of noble Lords have acknowledged, the case for reforming professional regulation has long been acknowledged, and stakeholders have long expressed concern that having nine separate professional regulatory bodies is confusing for the public. So our response in 2019 to the public consultation on regulatory reform reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system.

In the 2020 consultation Regulating Healthcare Professionals, Protecting the Public, we committed to a review of professions that are currently regulated in the UK to consider whether statutory regulation remains appropriate for these professions. A consultation seeking views has been published, and it will close at the end of March this year. We also commissioned KPMG to carry out an independent review of the regulatory landscape, and it submitted its report at the end of last year. Officials and others are now poring over the findings to consider how best to respond. However, as with any use of Section 60, a public consultation will be carried out on any legislation made under these powers, and this would face scrutiny through the affirmative parliamentary process.

On the core criteria and principles, the professions protected in law must be the right ones, and the level of regulatory oversight must be appropriate and proportionate to the risks to the public. This is why we have sought a number of views on the criteria for determining whether statutory regulation is appropriate. As I said, we will wait for the outcomes.

These proposals have been developed in partnership with the devolved Administrations, and we will continue to work in partnership with Scotland, Wales and Northern Ireland in taking forward any proposals for using these powers. This will also be subject to affirmative parliamentary approval.

Clause 142 provides additional powers that would widen the scope of Section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation, as was acknowledged. Subject to consultation, we are aiming to enable the professional regulatory landscape to become more streamlined and work more flexibly. We think that this clause will make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public. The Government keep the professions subject to statutory regulation under review. As I said, as part of our work to reform healthcare professional regulation, we are continuing to consult.

As I said, any secondary legislation made using the new powers would be subject to Schedule 3 of the Health Act 1999, public consultation and the affirmative parliamentary procedure, thus ensuring that there is clear parliamentary scrutiny and transparency in relation to any changes made by secondary legislation in this area.

I also refer back to the questions on the social care register, which I discussed at length, both before and after the recent Oral Question. When I spoke to officials about why the register cannot be compulsory, they said that this was fair, given the demographics of some of the people in the skilled sector, who quite often have some suspicions of authority and a lack of trust—we have seen that with vaccine take-up, for example—and so there were concerns about making it compulsory at this stage. It is voluntary. They want to understand the range of qualifications across the sector. There are a number of different qualifications, and, in professionalising the sector better, they want to make sure that they are consistent at all the various levels in our education system—levels 2, 3, 4, 5, 6 and upwards—to make sure that those qualifications are mutually accepted and recognised to make social care an attractive career and vocation.

For these reasons, I ask that Clause 142 stand part of the Bill.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister, but that was not a satisfactory response, I am afraid. The only word I heard that justified these extra powers being taken was “streamlining”, and, frankly, that is not good enough. It seems to me that the Secretary of State should not be taking powers to put forward the abolition of regulatory bodies on the basis of a public consultation and statutory regulation. The Minister must understand the difference between primary legislation and statutory instruments—that is the crux.

The reason for that is about the independence of the bodies we have, such as the General Medical Council and the General Dental Council. Those bodies need to feel that they cannot be subject to abolition at the whim of a Secretary of State. They have to be sure that they are protected by primary legislation in Parliament, and the Minister has not given me or the Committee an explanation as to why that should change. That independence is very important and precious.

On the issue of social care, I found the Minister’s explanation a bit patronising. It seems to me that, if we are to value social care and the people who work in it, we need to strive to give them the equality of regulation and supervision that the medical professions have. I realise that there is a journey and a process but, to me, that has to be the aim because it is the only way we can give that profession and the people who work in it the equality of regard that they deserve.

Clause 142 agreed.

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[Baroness Altmann (Con)]

It is a pleasure to follow the noble Baroness, Lady Barker, and I too commend the noble Baroness, Lady Deech—my noble friend, really—for all her work in this area. I particularly thank my noble friends the Minister and Lord Bethell, who I know have listened carefully and responded in the most compassionate and caring way. They have done a great service for many women across the country. I thank my noble friend for these amendments.

[Baroness Thornton (Lab)]

When the Minister and I were discussing government amendments, on this issue I said: “If Baroness Deech is happy with this, then I am happy with this,” and indeed I am.

[Lord Kamall (Con)]

I can confirm that that conversation did take place. When we were dividing up the groups for today, I thought about offering this to someone else. One of my noble friends turned to me and said, “You’re going to be bashed around enough today, Syed, at least take something you’ll get a bit of credit for.” But I cannot take credit: that has to go to the noble Baroness, Lady Deech, and the many noble Lords who have pressed this issue. The noble Baroness has also demonstrated the power of persistence and continuing the argument in a constructive way. On many of the other issues noble Lords believe in strongly—even if they feel that the Government may not be listening today, or that we are not sympathetic—I hope they will continue to be persistent.

On the general point that the noble Baroness, Lady Barker, made about reproductive health, I ask her to be more persistent. One of the great things about technology, not only digital but science and biology, is that often, it challenges the basis on which legislation was made. That is one thing we always have to be open to. Thanks to advances in technology, we are able to bring forward this amendment today. I will not say much more; I just hope that noble Lords agree that the time is right to change the legislation because of the progress made since the 2008 Act. I beg to move.

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[Lord Sentamu (CB)]

My Lords, I also stand to support Amendments 265 and 282. I am grateful to the noble Lords, Lord Hunt, Lord Ribeiro and Lord Alton, and the noble Baronesses, Lady Northover and Lady Finlay.

I declare an interest as, quite a number of years ago now, I was one of those who signed up to say that, at the moment of death, all my organs will be left to the National Health Service for any scientific work that may be required. I carry a card, but it says that my organs should be kept in this country and not exported anywhere else, because I have no trust that they would not be used for purposes for which they were not intended.

When I was doing philosophy in Cambridge, Professor Williams posed a question. He said “Surprising things happen—that they are no longer surprising. Comment.” Noble Lords who have done philosophy will know how complicated that question is.

In Uganda, Idi Amin was known for the people that he feared most. He would cut off their heads, put them in the fridge, and put their organs in another fridge. People did not believe this, and he was overthrown. His treating of the human body like something you simply dispose of was horrific. No wonder a lot of people died under that terrible Government of his when he was in power. What we are being asked is: should the standards in this country also be somehow given over to other countries so that they can learn? But we too have got to be very careful that our standards are as high as the tissue Act says.

We live in a world that is so perilous at times, and where some people may disappear and you never see them. In Uganda, quite a number of leading people disappeared and, up to today, we do not know where they went. The thing is, they would be put in drums of acid and their bodies would be dissolved. Surprising things happen—that they are no longer surprising. May we be so vigilant. These two amendments do the job, so I hope that the Minister when he responds will have heard the urgency in the speeches, but, most of all, in the amendments themselves.

[Baroness Thornton (Lab)]

My Lords, can I say how much I agree with my noble friend Lord Hunt, the noble Baroness, Lady Northover, and the noble Lords, Lord Ribeiro and Lord Alton? They know I have been with them on this journey throughout. I probably would go a bit further than my noble friend Lord Hunt’s Amendment 265, because I believe that this country should follow the example of France and ban the exhibition of plasticised cadavers and human body parts.

In 2019, we had an OQ on this, which many noble Lords here today took part in. I said at that time that there is an

“ethical issue at play here”

and that it seemed that the businesses that had

“the exhibitions which use plasticised cadavers and foetuses for supposedly educational purposes could use modern materials and production to create the same exhibits. That begs the question: why use cadavers and human body parts at all? If the answer is that people want to see such things and will pay to do so, I remind noble Lords that people used to flock … to see public executions until 1868.”

It is an ethical issue. I am afraid that the noble Baroness answering that debate at the time said that

“the ethical position is not one for government.”—[Official Report, 27/2/21; cols. 228-29.]

Well, I would say that this debate shows that the ethical position is absolutely one for government.

[Earl Howe (Con)]

My Lords, I begin by thanking the noble Lord, Lord Hunt of Kings Heath, and many other noble Lords for bringing these amendments relating to these important and sensitive issues to the Committee today.

Amendment 265 seeks to prohibit the use of imported bodies or parts of bodies for the purpose of public display without the specific consent of the donor. The Government share the concern motivating Amendment 265 that bodies may in the past have been displayed in public exhibitions without the donors’ consent. We therefore committed in this House, during the passage of the Medicines and Medical Devices Act, to address this concern, and have since worked closely with the Human Tissue Authority to strengthen its code of practice on public display, which was laid before Parliament last July. The code now guarantees that robust assurances on consent for all donor bodies, including imported bodies, are fully received, assessed and recorded, before the authority issues any licence for public display. The Government therefore do not believe that this amendment is necessary.

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[Baroness Neuberger (CB)]

My Lords, I support Amendment 283 in the names of the noble Baroness, Lady Cumberlege, and my noble friend Lady Finlay. Like my noble friend Lady Finlay, I want to say how grateful I am and how touched I was that the noble Baroness, Lady Cumberlege, asked me to add my support to this amendment. I also need to beg your Lordships’ indulgence: if we do go beyond 7 pm, which I sincerely hope we will not, it is actually the beginning of the Jewish Sabbath. I should not be here now, and I certainly cannot be here after 7 pm. I will pretend that I am just slipping out briefly, but I am vanishing at 7 pm whatever happens. Your Lordships will be very glad to hear that I am not going to talk until then.

When the noble Baroness, Lady Cumberlege, asked me to support the amendment, I said that I would consult with the medical directors at the two NHS trusts that I chair, the University College London Hospitals Foundation Trust and Whittington Health NHS Trust. I did exactly that, and I have never had emails back so quickly from the medical directors—there are four of them between the two trusts. The amendment was welcomed unreservedly; they really want this to happen. The medical directors had no doubt that this was both an ethical requirement and indeed something to be encouraged in how doctors think about their own practice. That is the point that my noble friend Lady Finlay made. It is something about the subliminal; it makes you start thinking differently and your reactions become different.

One of the medical directors pointed me to Patrick Radden Keefe’s superb book about Purdue in the United States, Empire of Pain, and said that in a way that is exactly the issue here. Some of the people clearly knew that what they were doing was totally wrong, but some did not realise that what they were doing was wrong, because they had not got the subliminal way of judging, because this was accepted practice. That is the really strong argument for this: we need to be able to encourage people to think differently. There are lots of doctors who desperately want it, as the medical directors at my two hospitals have made entirely clear.

I pay huge tribute to the noble Baroness, Lady Cumberlege, for her report First Do No Harm—as well as for the many other things she has done, but in particular for that report. It has changed the way that quite a lot of people think; it is quite hard to achieve that with a report and it is a very remarkable thing to have done. This is a national and international issue. We are concerned here only with the national, but we could—and should—set an international example of good practice.

After the Paterson review and First Do No Harm, this is now urgent. The GMC is obviously the right body to hold such a register, and I say so as a former member of the GMC. I was rather sad to see its somewhat lukewarm reaction in its briefing and I think that it has got this wrong. They are the right people to hold the register and to make it available to patients. The public must be able to access it. The employers, individual doctors, the Medical Royal Colleges and others must all play their part and, of course, other health professions must follow suit.

Let us start here. This needs to happen, and it needs to happen fast.

[Baroness Thornton (Lab)]

My Lords, I can only add to the last remark of the noble Baroness that this does need to happen. I can see why the GMC is so unenthusiastic, as it was in its briefing note, because it looks like it is probably about 300,000 people and that is a big job. However, the question that I ask myself is, if a large pharma or large manufacturer of medical products is having a national campaign that involves hundreds of clinicians across the country, how will we know that is happening if all the registers are local? It seems to me that that is absolutely the point. It has to be a national register and the GMC probably has to be persuaded. If it is not the GMC, we would have to set up something different, and that would probably be a ridiculous thing to do. So the noble Baronesses, Lady Cumberlege and Lady Finlay, are quite right: we have to make progress on this.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, we have been reminded many times during the debates in Committee of the aims of the Bill to improve the health and well-being of the population, to improve the quality of care and to use NHS resources sustainably through integration, co-operation and collaboration. Of course, the point at which these resources are used at the coalface, known as “place” in the Bill, is in these place-based organisations. To ensure integration at this level, we are told that the ICB must create an integrated care partnership, otherwise known as a place-based integrated care board, which probably has an acronym as well. There is, however, very little detail about those, despite their crucial importance, and these amendments from the noble Lord, Lord Hunt, are an attempt to put a bit of flesh on those bones.

I put my name to Amendment 166, but I could just as easily have put it to Amendment 165. Amendment 166 says that, within the place-based partnership, there should be mandated a provider network board with duties delegated to it by the ICB. It would be under parliamentary scrutiny and have an obligation to meet in public. These networks already exist and exert considerable influence, but it is essential that they operate in this new integrated care system under a regulated constitution, with obligations to consult and financial provisions. This amendment would ensure the transparency, for which the noble Lord, Lord Lansley, called, over how well integration is operating at this very important level so that there can be proper control and accountability and scrutiny as to where the money is being spent and whether it is achieving the duties placed on all these systems by the Bill.

[Baroness Thornton (Lab)]

I thank my noble friend for tabling these amendments; I have added my name to both of them. They are about transparency and legitimacy, raising very important questions which the Minister needs to answer.

I go back to what the noble Lord, Lord Lansley, said at Second Reading, which I think my noble friend referred to. He said that

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability.”—[Official Report, 7/12/21; col. 1789.]

I do not need to say any more than that. The Minister needs to answer that question, because it needs to be resolved before the Bill completes its passage.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, for bringing us back to the subject of place-based structures and taking us into the issues relating to provider networks. I hope it will be taken as a given that the Government have sympathy with the intentions behind his amendments.

On Amendment 165, we absolutely agree on the importance of place, and I hope I can provide the Committee with reassurances on that score. First, the linchpin to the accountability issue is, I suggest, the ICB constitution, which is required to set out how its functions will be discharged. That may include how functions will be carried out by committees and sub-committees, which will include place-level committees. The best size for an ICB area varies according to local circumstances, and some of the smaller ICB areas are coterminous with the local authority. In those systems, place arrangements will quite rightly look very different from the large ICB areas.

ICBs need to be clear about the expectations and roles of place-based structures, including what they are responsible for commissioning, what powers have been delegated to them, and what resources they are responsible for. The current legislation provides for the ability to establish place-based structures and set them out clearly in ICB constitutions. However, Frimley is not Cumbria, and Essex is not Manchester. We want to give ICBs the flexibility to determine structures that work best for them. To help them do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions, and is working with CCGs and the current non-statutory ICSs to develop model constitutions for the future ICBs. Those constitutions will, of course, also have to be approved by NHS England before the ICB is established. This approach should achieve the right balance, because it allows us to support ICBs to develop, without the danger of putting in place further legislation which could act as a barrier to future evolution. Requiring the establishment of a separate place-based board is simply not necessary and would come at a bureaucratic cost.

I turn to Amendment 166. I appreciate the noble Lord’s concern about transparency and accountability for groups of providers working together where they are exercising functions that an ICB has delegated. I shall come on to the concern expressed by my noble friend Lord Lansley, about the purchaser/provider split. Provider collaboratives are intended to deliver the benefits of scale, with providers working together to implement best practice and reduce variation in access, experiences and outcomes for patients and populations. For example, this could involve sharing workforce and managing capacity on a wider scale. Depending on the local circumstances, such arrangements may include a delegation of ICB functions. ICBs and providers should have the flexibility, in line with guidance that will be issued by NHS England.

[Baroness Thornton (Lab)]

Has the Minister actually seen the model constitution that will be imposed by NHS England, and does it do what he is suggesting it does? Maybe the rest of us could see it, too.

[Earl Howe (Con)]

My understanding is that it is work in progress—so no, I have not seen it.

[Baroness Thornton (Lab)]

Is it not then unsatisfactory that we should complete the passage of the Bill without having sight of the constitution, so that we can be assured that the assurances that the Minister is giving us will in fact work?

[Earl Howe (Con)]

I do not think that is a reasonable ask by the noble Baroness, if I may say so. I am trying to describe a structure that should deliver what I am sure she wants to see—safeguards and good pointers for ICBs to make their own decisions, while also ensuring that some of the pitfalls mentioned in the debate are not fallen into. If I can let her see the work in progress, I shall certainly be glad to do so—I do not have a problem with that—but I suggest that it is not necessary for her to do that to accept the proposition that I am trying to put forward.

As I have mentioned, the Bill requires an ICB to set out in its constitution how its functions will be discharged, including any arrangements to delegate functions to provider collaboratives. Furthermore, as an additional safeguard, the Secretary of State may impose conditions on the exercise of the power through regulations.

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The Bill lays out in some considerable detail the powers and duties of the new integrated care systems, and the Government tell us they do not want to be prescriptive as to how these duties should be carried out—yet here, we are expected to rubber-stamp an enormous set of powers which could do absolutely the opposite. Clause 39 is not needed. In addition to all the regulatory and guidance powers in the Bill, the Government still hold the overall purse strings and can always provide additional resources after the initial budgets have been set if particular needs arise. The Secretary of State should then leave it to those who have been so carefully chosen and so rigorously regulated to get on with the job. I support removing Clause 39.

[Baroness Thornton (Lab)]

My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.

We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.

This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.

On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.

We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?

I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.

[Lord Kamall (Con)]

I thank all noble Lords for their amendments and for challenging the issues around the power of direction. We believe that we must have the right framework for national oversight of our health system. Following the merger of NHS England with Monitor and the Trust Development Authority, NHS England will be one of the largest arm’s-length bodies in government, responsible for over £130 billion of taxpayers’ money. Without this power, we would be expanding the functions and responsibilities of NHS England without ensuring that there are enhanced accountability measures in place.

Accountability must run from NHS England to Ministers, from Ministers to Parliament, and from Parliament to the public. This is what the power of direction supports. Indeed, a number of politicians from different sides agree that if you walked out into Parliament Square and asked people who is responsible, they would expect us to have answers. Therefore, we want to make sure there is the appropriate power of responsibility.

I also want to give reassurances that we expect the situations where the Government issue directions to NHS England to be rare. Where it does happen, Ministers will of course ensure that the direction is clear, appropriate and has suitable timeframes. It is paramount that this power can be deployed quickly when required, and limiting it to specific instances, or prescribing a time limit as to its efficacy, would undermine the intent of these provisions.

That said, we agree it would be inappropriate to use this power to intervene in clinical decisions, and we have specifically exempted this in the Bill. For example, we have made sure that a direction cannot be given in relation to drugs, medicines or—interestingly, given our previous discussions—on treatments that NICE has not recommended or issued guidance on. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, rightly questioned the draft guidance that NHS England has given—we are trying to find a copy of that. However, we recognise the unique role the Secretary of State for Health and Social Care plays in the system. The Secretary of State could use the powers to request to see the guidance developed by NHS England before it is published, to ensure that NHS England is working effectively with other parts of the system, such as local authorities, given the concerns that both the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, raised.

On Amendments 176A and 174A, we have already included a number of exemptions to the power of direction in the Bill to ensure the Secretary of State is not able to intervene in day-to-day operational matters. There is also no intention that the power will be used to direct NHS England on procurement matters. Any decision to exercise the power will be subject to and guided by general public law principles and general statutory duties. This means, for example, that Ministers will have to use regulations where they exist, as they do for procurement, and that the Secretary of State cannot direct NHS England to breach procurement regulations, since this would be unlawful.

In relation to allocations to ICBs, NHS England uses a formula to allocate NHS resources to different parts of the country based on long-standing principles of equal opportunity of access for equal needs and informed by the independent Advisory Committee on Resource Allocation. There is no intention to use the power to interfere in this process.

In relation to local organisations, I make the point that the Bill will provide more practical autonomy at a local level by strengthening local leadership and empowering local organisations to make decisions about their population, while also allowing for national accountability. This is the approach we want to take with this power: directing NHS England only on the functions it holds in respect of local bodies, to provide necessary support and assistance to them, especially if they are failing. It is also vital that a power of this nature is accompanied with appropriate safeguards and transparency requirements.

On Amendment 174B, which relates to public interest, the clause already ensures that all directions must be made in the public interest.

On Amendment 175A, the noble Lord, Lord Hunt, has called for directions to be laid in Parliament. It is already the case that any direction issued must be made in writing and will have to be published. This will allow Parliament to hold Ministers to account for use of this power.

On Amendment 175, Ministers already work in partnership with NHS England, and any direction made would come after close working and considered discussion. NHS England will continue to make the vast majority of its decisions without direction, consulting the Government as it needs to. We believe that this power provides additional transparency by ensuring that where Ministers direct NHS England, it is clear, published and available for scrutiny by all. Any direction will come after a considered discussion with NHS England and advice, including on the impact and deliverability of such a direction. Ministers will of course consider, with NHS England and others, that the priorities being set are the right ones and whether they are affordable. However, it is important that we do not put in place too bureaucratic a structure that would bind Ministers’ hands when decisions have to be made quickly.

I end by addressing the questions put forward by my noble friend Lord Lansley and the noble Baroness, Lady Walmsley, about Clauses 39 and 64 being removed from the Bill. Clause 39 is part of our ambition to put increased accountability for the Secretary of State at the heart of these proposals while committing to the NHS’s clinical and day-to-day operational independence. We reiterate that the power will add to the existing ways that the Secretary of State and NHS England work together. The mandate to NHS England, which has been an established means of providing direction since 2013, will continue to be the main place for strategic direction-setting.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

With a good deal of regret—I do not like to disappoint the noble Lord, Lord Hunt—I am afraid that the Government cannot accept these amendments. However, I hope that I have given the noble Lord some reassurance about the appointments process for the ICB, and that he will feel able to withdraw Amendment 25.

[Baroness Thornton (Lab)]

The appointments commission worked extremely well for many years. Why is it not good enough now?

[Earl Howe (Con)]

As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

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[Baroness Thornton (Lab)]

I thought noble Lords would have more to say about digital matters. I shall respond to this group very briefly, because my noble friend Lord Hunt, the noble Lord, Lord Clement-Jones, and others have very adequately covered the issues: the potential for digital transformation, the need to use patient data, the need for resources and, as the noble Lord, Lord Bethell, just said, enthusiasm and leadership.

The noble Baroness, Lady Cumberlege, as she always does, brought us practical applications of the reasons why the amendments are necessary, and it brought to my mind that my digital interface with the NHS is a good example of someone who is absolutely at the coalface. I am part of UCLH’s digital patient management system. It does not talk to my GP and it does not talk to the Royal Free, which is where one has one’s tests in the part of London I live in, and I think, “For goodness’ sake, we really ought to be able to do better than this”.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones, the noble Baroness, Lady Thornton, and my noble friend Lady Cumberlege for bringing these amendments for debate before the Committee today.

Once again, we are dealing here with an important set of issues. First, Amendments 26 and 35 would ensure that integrated care boards appointed a director of digital transformation. The Government fully agree with the spirit behind the amendments, ensuring a strong local focus on digital transformation. However, looking at the pros and cons, we must balance the desire to go further—which we all want—with the important principle that I have articulated before: that the provisions in the Bill should not be too prescriptive when it comes to membership requirements. As we have discussed, it is an essential principle of the Bill that there must be local flexibility to design the board in a way most suitable to each area’s unique needs.

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[Baroness Walmsley (LD)]

My Lords, it is essential that the board have available to it the skill set that you find in people at the clinical front line. I was interested to see that, putting the amendments from the noble Baroness, Lady Finlay, together, we have three people who are not representing one of the big acute hospitals, and one who is. Given the danger referred to by a number of noble Lords that the big acute hospitals will continue to have more influence in an integrated system than perhaps they should, that is a good element of putting the two amendments together.

As I said, it is important that clinical knowledge and experience be available to the board, but I would like to know that there is a balance and that this does not overwhelm other skill sets which all of us want to see represented; that became clear in the discussions we had last week about who should be on the board. With that caveat—the noble Baroness, Lady Finlay, might respond to that if she chooses to withdraw her amendment—I offer qualified support to what she is suggesting.

[Baroness Thornton (Lab)]

The two amendments put forward by the noble Baroness, Lady Finlay, add to those we have already discussed about who should serve on the board and what range of experience its members should have. Of course, we all agree that it is important to have clinical experience brought to the board. However, if this is about integration—I may have said something similar to this last week—mental health, social care, primary care and public health need to be part of the planning on these boards. In that respect, I give these amendments my support, but I think we need more discussion about this. At the moment, as far as I can gather—perhaps the noble Lord can enlighten me—the boards are pretty much made up and I do not think they fulfil the criteria of things we will need to bring to bear to have properly integrated planning in the places covered by these ICBs.

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Seeing is believing. I encourage my noble friend on the Front Bench to visit Bromley-by-Bow, as a past Minister, Sir Brian Mawhinney, did. He ensured the future of this enterprise for a few more years and enabled it to flourish. I know that ministerial diaries are a real challenge, having had one, but I assure my noble friend that a visit to Bromley-by-Bow will never be forgotten and will make a deep impression.

[Baroness Thornton (Lab)]

Might I have some clarification from the noble Lord, Lord Mawson? He and the noble Baroness, Lady Cumberlege, have referred to three amendments and I can see only one. I would be grateful if he could enlighten me on which the other two amendments are that we might be addressing in this debate.

[Lord Mawson (CB)]

My Lords, there is just one amendment in this debate. My other two come further on.

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So I ask my noble friend, at this stage—as we are just starting out on this—whether he would be kind enough to show us where in the Bill the essential element of place is to be inserted. Then we can debate it further and put it into the Bill in its right form.

[Baroness Thornton (Lab)]

I thank noble Lords for what has been a very interesting and important debate. I thank the noble Lord, Lord Mawson, for his amendment, and I look forward to further development of the thought process that he has put before the Committee. Of course, it is not new. I started my working life working for Michael Young, the great sociologist in Bethnal Green, and we talked about ethnographic research in our neighbourhoods and places. It was about giving people who lived in those places power and developing their own leadership of what they wanted to happen. Of course, in those days, when he started doing his work, it was about regenerating inner London—the bomb-strewn East End. I had the great privilege of running the Young Foundation: a few years ago, I took a couple of years off from this job here to go and run it, and we were doing exactly the place-based work that the noble Lord, Lord Mawson, talked about.

The noble Baroness, Lady Harding, is completely right: there are many Bromley by Bow-type programmes across the country—and thank goodness for that. If the Minister decides to go on trips to places, Bromley by Bow is of course important. I went there when it started out, when I was the founding chair of Social Enterprise UK, and the noble Lord, Lord Lansley, is quite right: it is brilliant, it is wonderful, it does great work —but why has it not been replicated? That is a question I have discussed with the noble Lord, Lord Mawson, on and off over many years. But there are many other types, and I suggest that the Minister might go to Manchester, Bradford or Nottingham, where there are some brilliant programmes where this place-based delivery of healthcare and other care is thriving.

The consensus breaking out between myself and the noble Lord, Lord Lansley, is of course that this Bill is an opportunity: how and where in the Bill can that place-based initiative be expressed? Where is it and how can it be encouraged? The King’s Fund did a piece of work developing place-based partnerships as part of the process leading up to the Bill, which was published last year. It has some interesting and useful things which express the sorts of sentiments—but in NHS-speak—that the noble Lord, Lord Mawson, talked about today: the importance of connecting communities, jointly planning and co-ordinating services, making the best of financial resources, supporting the local workforce, and driving improvements through local oversight and quality provision. There are certain elements of this which need to be there and need somehow to be built into the Bill, possibly in enabling form, because they mean building multiagency partnerships which involve local government, NHS organisations, voluntary service organisations, social enterprises and the communities themselves.

The noble Lord, Lord Mawson, rightly asks in his amendment for one voting ICB board member to be nominated by place-based partnerships. That may or may not be a good way forward, but we are trying to do systems change and, whether or not putting one person on a board is the way to do that, it is a very good place to start. So we on these Benches are very interested in how this develops and want to be part of the discussions across the House about how we do that.

[Earl Howe (Con)]

My Lords, no one is better placed, whether inside or outside your Lordships’ House, to advocate place-based partnerships than the noble Lord, Lord Mawson. I know he will remember that one of my first visits as a Health Minister in 2010, at his invitation, was to Bromley by Bow. What I learned that day made a deep impression on me, so I, like many noble Lords, need no convincing of the case that he and other speakers have made today.

I am aware that the noble Lord, Lord Hunt of Kings Heath, has tabled Amendment 165 on place-based arrangements, to be debated by this Committee later in our proceedings, so no doubt we will cover the issues in more detail then. For now, I say that the Government absolutely agree with the importance of having strong place-based elements in ICBs. Place-based structures will play an important role in delivering healthcare services for their population groups and we expect there to be open and clear lines of communication between the board of the ICB and place-based structures.

How is a sense of place given—as it were—tangible substance and meaning? I would argue that we do not necessarily need the Bill to articulate the reality. At a very basic level, an ICB will cover a geographic area. We would expect ICBs to be closely linked to their places via bodies such as health and well-being boards, where they will sit as the successor bodies to CCGs, and local authorities. ICBs will sit on the integrated care partnership as well as the health and well-being boards. Both bodies are vital in bringing together health, social care, public health and, potentially, wider views as well. That will be part and parcel of delivering their duty to involve patients, carers and the public when discharging their functions.

We expect ICBs to have place-based structures in place, but we do not want to prescribe what those structures are. As the noble Lord, Lord Mawson, said himself, we do not want ICBs to think that place-based partnerships are achievable via a central blueprint, or that a set of instructions from above is likely to be a substitute for learning by doing and local relationships. What we shall insist on is that an ICB sets out the arrangements for the exercise of its functions clearly in its constitution. Different areas have different needs, and I hope it is a point of agreement across the Committee that a one-size-fits-all model would not be appropriate.

Coronavirus Bill

Baroness Thornton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 25th March 2020 Lords Chamber

Moved by

[Baroness Thornton]

1: After Clause 15, to insert the following new Clause—
“Monitoring body: effect of Schedule 12
(1) The Secretary of State shall, within seven days of the date on which this Act is passed, appoint by order a body (“the relevant body”) to monitor the effect of Schedule 12 to this Act.(2) The relevant body must—(a) advise Her Majesty’s Government about the effect of Schedule 12;(b) make recommendations to Her Majesty’s Government about the amendment, suspension or repeal of Schedule 12.(3) The relevant body must publish a report in respect of paragraph 2(1) and (2) of Schedule 12 at least once every eight weeks during any period in which that Schedule is in operation.”Member’s explanatory statement
The purpose of this new Clause is to ensure that the impact of Schedule 12 (local authority care and support) is subject to monitoring and review by a body such as the Equality and Human Rights Commission.

[Baroness Thornton (Lab)]

My Lords, the amendment would ensure that the impact of Schedule 12, which concerns local authority care and support, is subject to monitoring and review by an appropriate body. The amendment is about the voice of the people affected by Schedule 12 being heard in the process of the Government reviewing whether the system is working and whether they will keep it in place.

We on these Benches believe that that should be done by an independent body or organisation—that is, an independent voice that is not the Government or one of their organisations. The reason is that we know that this schedule will have an enormous impact on our social care systems. Given that those systems have already suffered a crisis in funding and resources—and will also be taking in volunteers to help—this is an important moment.

It is important for two groups of people in particular. Yesterday, I was struck by the remarks of the noble Baroness, Lady Grey-Thompson; as I said then, she made me realise that the impact of this Bill on the disabled is profound indeed. There are two groups that need to be represented and whose voices need to be heard. One is the elderly and housebound; for them, an organisation such as Age UK, or something similar, may be appropriate. The other is the disabled. Both groups of people will be physically and mentally affected by the schedule, but the disabled are a particular cause for concern because this is also about their rights. I gave the Minister notice of the fact that we want those rights to be suspended for a shorter period.

This amendment is about finding a way for affected people in those groups to have a voice. We all need to be very disciplined in this part of the journey through the Bill so I do not intend to speak for much longer; but I would like to say how impressed I am by the way that Age UK has been approaching this crisis, which, of course, has enormous implications for the people it seeks to champion, represent and campaign for. Age UK’s chief executive Steph Harland said:

“Before this crisis began, we were already very concerned about the large numbers of older people who were disadvantaged and isolated. The reality is we’re not at the toughest point of this crisis yet, and it’s difficult to predict what that will mean for us as individuals, our charity, and the older people who rely on us and our partners across the country. What we know with certainty is it will get far more difficult than it is today and older people’s needs will sky-rocket.”


She is quite right. This amendment makes the point that that voice needs to be heard, and the Government need to listen to it as part of their monitoring. I beg to move.

[Lord Scriven (LD)]

My Lords, my Amendment 2 is also in this group and I want to speak briefly to it. I start by drawing the attention of the House to my interest as a vice-president of the Local Government Association. Amendment 2 is a probing amendment—a very friendly one, as I hope the Minister understands—regarding something that I foresee.

It is clear from discussions with my local government colleagues across the country that there are a number of issues in respect of which local communities are turning to their local authority as the nearest the port of government, as they see it—one they recognise and have a relationship with. Some councils can deal with many of the things that people are turning to them for; others would like to but do not have the powers to do so. As this public health challenge becomes increasingly severe, the demands on local government will be immense. Local authority employees, who are doing a great job up and down the country, will not be immune from getting the coronavirus, which, as I said yesterday, will also affect services not related directly it, such as refuse collection or environmental health; or they may not have equipment such as lorries or vans to deal with issues.

They will need a general power of direction—some way to say to other organisations within their jurisdiction, “We can’t negotiate; we can’t plead with you. This is a crisis. We need you to act. We need to requisition certain items, personnel or services off you.” I ask the Minister this: if the Government cannot accept this amendment, what arrangements will be in place—or what regulations will come forward in a very speedy way—to enable local government to best deal with the issues that will inevitably come to rest on its shoulders?

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

My Lords, I start by welcoming this amendment, which in its spirit and intention is utterly sensible, thoughtful and right. I would like to speak on it in a way that reassures the House that the intention of the amendment and the many speeches in the Chamber today are exactly aligned with the way government is thinking and in which we have sought to build the Bill.

I also echo the many noble Lords who have mentioned the speech by the noble Baroness, Lady Grey-Thompson. Who could not have been moved by both the emotional way in which she explained herself and the very real and tangible anxiety of people—particularly in the disabled community, but anyone who depends on local authority services—who must feel incredibly vulnerable and worried that their affairs may not be given the priority they deserve, and may feel exposed and anxious about the future? That testimony was incredibly powerful and moving. It was taken to heart.

I also say a big thank you to all those who have engaged with us as we have drafted the Bill at pace, both at a senior level from major organisations such as the LGA and smaller ones and stakeholders. I assure the House that we absolutely are listening to groups that have concerns about provisions for their stakeholders. We have our ears open. The Government’s whole “protect life” strategy is shaped around an absolute priority of trying to save the lives, affairs and futures of the most vulnerable in our society. These provisions are here not because we want to leave anyone behind but because we want to enable local authorities to make the decisions they need to in order to make a fair, pragmatic and sensible distribution and prioritisation. It is our hope that these provisions will never come into play and that the commitment of resources we have made into the local authority area will see a generous and sensible provision for all those most vulnerable in society.

I will take just a moment to outline a few provisions that are in place, to reassure the House that we are not in any way removing all safeguards. For instance, I assure noble Lords that the Care Quality Commission will continue to provide independent expert regulation of health and care providers. It has already announced arrangements for a proportionate approach to ensuring standards of care over the coming period. We have published an ethical framework to provide support to ongoing response planning and decision-making. This sets out a clear set of principles and behaviours when challenging decisions on how to redirect resources where they are most needed and how to prioritise individual care.

We are working closely with the sector on additional guidance to ensure that procedures and prioritisation of needs operate in the best way possible during this period. The emergency Coronavirus Bill also contains provisions allowing the Secretary of State to direct local authorities to comply with the guidance we issue.

Legislation underpinning our crucial safeguarding arrangements to protect vulnerable people from neglect or abuse remains in place. That was a point that many noble Lords made very well yesterday. We are leaving all statutory duties relating to deprivation of liberty safeguards fully in place.

The noble Baronesses, Lady Hussein-Ece, Lady Thornton and Lady Uddin, all raised the question of carers. I assure the House that we totally agree with the intent of the amendment. We need to ensure that users and carers retain a clear voice in the coming period and are able to make their concerns known. Our guidance on the Care Act changes will cover this. A national steering group is leading the sector’s preparations for Covid-19; it includes both user and carer representatives.

The noble Lord, Lord Adonis, quite rightly raised the question of commitment to democracy and oversight. I assure the House that we absolutely embrace the ongoing functioning of Parliament. While I cannot speak for the House authorities and their arrangements for Parliament, I can speak for the health department. We are introducing technology there, such as video data and home-working, at pace. We are seeing a generational transformation in working practices in the last fortnight. These arrangements have been embraced, and I expect them to be embraced in other parts of the workings of the House.

We will also continue to report on the eight-weekly cycle. The noble Baroness, Lady Watkins, and others emphasised the importance of monitoring. We will put in place structures for providing the correct kind of monitoring.

The noble Lord, Lord Blunkett, rightly emphasised the importance of civil society, which is absolutely key, while the noble Lord, Lord Hain, emphasised the importance of volunteers. I reassure the House that the Bill contains extensive arrangements for a volunteer army to be recruited in a safe, orderly and accountable way and for funding to be put in place for volunteers. The Chancellor has announced generous and important provisions for charities; the noble Lord, Lord Hain, is entirely right that they have seen their donations dry up. They need support and provision if they are to play an important role against this contagion.

I completely understand the intent of the amendment in the name of the noble Lord, Lord Scriven. We have spoken offline about his concerns, which I have taken back. I reassure him that we have worked closely with the LGA and, in its dialogue with us, its emphasis has been on financial commitment rather than changes in the law. We have made a substantial £1.6 billion commitment but we will keep the question of legal changes under review.

The noble Baroness, Lady McDonagh, mentioned PPE, which although it lies to one side of this amendment is of concern to us all. I reassure the Chamber that a massive global procurement programme is in place. Distribution of existing PPE stocks is happening via the Army. A hotline has been issued to all front-line workers in the NHS and social care. We are moving fast and impactfully on that situation.

Lastly, we should not overlook Wales. The Welsh parliament has considered every question of this Bill and has signed off its legislative consent Motion. I am extremely grateful to Vaughan Gething, the Minister for Health and Social Services in the Welsh parliament, for his support.

For those reasons, I ask the noble Baroness to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that comprehensive answer. I also thank all the House for its supportive remarks on this amendment.

I say to my noble friend Lord Adonis that the two things we are talking about—the accountability of Parliament and our need to monitor these things, and the voice of the users and people at the receiving end of care, or non-care—are not in conflict. We need to be doing both, of course.

The noble Baroness, Lady Hussein-Ece, was quite right to point to vulnerable children and their care. My noble friends Lord Hain and Lord Blunkett were also absolutely correct about the importance of civil society in getting us through this crisis.

My noble friend Lady Pitkeathley is not here, but she is listening to us. She texted me to say, “Thank you for mentioning carers”. Of course in all this, the carers —people who are at home, many of them quite elderly themselves—are caring for people who will be at the sharp end of what comes next. We should not forget that.

I found two things very useful. First, the noble Lord, Lord Russell, mentioned the NCVO’s role in this, and he is absolutely right. Secondly, and finally, the Minister mentioned that the Government will produce guidance on the enactment of these clauses. This has to be done quickly but I put in a plea: that the voices we have talked about in this short but pertinent debate should be heard in the construction of that guidance, too. On that basis, I am happy to withdraw my amendment.

Amendment 1 withdrawn.

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[Baroness Uddin]

My Lords, I add my support to the amendment, particularly on behalf of those who work for small satellite TV channels and ethnic minority newspapers. I have been inundated with hundreds of calls, particularly from journalists who work in this massive, £5 million industry as self-employed freelancers and who feel absolute fear and hopelessness about how they are going to manage in the lockdown. Many satellite channels rely on advertising which is now going to dry up, if it has not already. Newspapers are not being sold, so I want to add their concerns to our consideration of this amendment. I hope the Minister and the Government will look seriously at the Norway model, as the noble Lord, Lord Adonis, has suggested.

The Minister said earlier that we are looking into global procurement: I think we should look also at the global procurement of ideas to ensure that our people are served wherever they are working.

[Baroness Thornton]

My Lords, this has been another short but important debate and I absolutely agree with my noble friend Lord Adonis; first, about the Resolution Foundation paper that came out this morning, but also on his point about the 5 million gig workers. The noble Lord, Lord O’Shaughnessy, made absolutely the right point: it is absolutely not in our interest for these people not to have enough to live on and to feel that they have to go out to work, even if they are ill and they will infect people, because otherwise they will not be able to pay their rent. We are very pleased to support this amendment—indeed, we always would have supported it.

I shall make just two points. One is about financial support. I really think we need to know when the Chancellor is going to announce what further support can be provided, not only for those who are self-employed, which is very urgent, but measures to improve access to sick pay and deal with the issues of assisting millions of people through the universal credit scheme by increasing it, suspending sanctions and scrapping the five-week wait for a first payment. Those things are absolutely urgent and important.

The other point I take this opportunity to raise is about renters. I looked at the Bill again last night after having said that I thought the three-month pause on evictions was not adequate to protect people who rent because it would defer a crisis only to the end of the period, when landlords will demand total arrears payments for three months’ rent. The Minister said that of course this could be renewed and turned into six months, but actually the Bill does not say that, so I seek reassurance. This is linked to income support because the people we are talking about are exactly the people who will not be able to pay their rent.

In the event of that, we need to be sure that individuals and families will not get served with eviction notices. Some people will have been given their eviction notices prior to this legislation, and the Government need to take account of that. Those people should not be evicted because they may have been given a month’s notice two weeks ago and they may find themselves evicted right in the middle of the worst point of this crisis.

My final point is about people in shared ownership, which is part of what the noble Baroness behind me said: when you have people with shared ownership, that is an issue. In the housing association world, people with shared ownership apportion their outgoings partly to their mortgage and partly to rent to the housing association. Many housing associations have put up rent from April as a result of the freeze on rent increases being lifted, so how will these tenants and owners be protected in terms of the rent element of those costs? I do not necessarily expect the Minister to be able to answer that question right now, but there are hundreds of thousands of people in the housing association world who will also need our protection.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, and other noble Lords who have spoken to this amendment.

I will get straight to the point. The first thing that I ask the Committee to do is recognise the nature and scale of what the Government have done so far to protect the jobs and incomes of millions of people. The package of measures that we have already announced is unprecedented and is one of the most generous business and welfare packages by any Government so far in response to Covid-19. In the context of those measures, which have been broadly welcomed, the Government absolutely acknowledge the calls for more to be done in relation to the self-employed. I completely agree with what noble Lords have said about the vital role played by the self-employed in our economy and our national life. We have always said that we would go further where we could, and I can tell the Committee that we are actively considering further steps, which I will come back to.

We have already improved the welfare safety net to ensure that self-employed people and freelancers are better protected. We are temporarily relaxing the minimum income floor for all self-employed universal credit claimants affected by the economic impact of Covid-19 from 6 April for the duration of the outbreak. This means that a drop in earnings due to sickness or self-isolation or as a result of the economic impact of the outbreak will be reflected in claimants’ awards. It ensures that the self-employed are supported by the benefits system so that they can follow Public Health England guidance on social distancing and self-isolation.

Freelancers and the self-employed will also benefit from the changes announced to the benefits system such as the £20 increase in the universal credit standard allowance, which will mean that claimants are better off by £1,040 a year and will benefit from the increases to the local housing allowance. I add that we are already making sure that benefits are easily accessible and more supportive for those who need to make a claim. Other changes announced by my right honourable friend the Chancellor, such as deferring income tax self-assessment payments due in July 2020, are designed to help self-employed people and freelancers through this period.

My right honourable friend the Chancellor has stated that he is committed to going further to support individuals and businesses, and will provide a further update on support for the self-employed in the coming days. That is an assurance that I can give today. I have taken full note of the careful way in which the amendment has been drafted and the points articulated by noble Lords in support of it; they have been well and truly registered. An amendment to the Bill is not required for the Chancellor to provide further support for the self-employed, support that I emphasise is already planned and due to be announced shortly.

I emphasise again that everything is being done to ensure that everyone is supported to do the right thing for the good of us all. It would be wonderful for everyone if I were able to go further today, and the noble Lord, Lord Clement-Jones, will understand why I cannot, but I hope I have provided sufficient reassurance to enable him to feel comfortable in withdrawing the amendment.

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This is the situation in week three. Imagine what the situation will be like in week seven when we are back—if Parliament comes back. This is necessary and urgent. It not only affects the lives of the women concerned but has a huge impact on NHS staff and the rest of society. I therefore strongly urge the Government to accept this proposal.

[Baroness Thornton]

My Lords, I attempted to put my name to this amendment. For some reason, presumably because the Public Bill Office staff are all working from home, it did not quite get through. The Government need to give this very serious consideration indeed.

[Lord Bethell]

My Lords, I completely recognise the good intentions of this amendment and the desire to protect women in an awkward situation at a difficult time. I also recognise the strong stakeholder views given to me by the royal college, Marie Stopes and others, but it is the Government’s priority to ensure that women who require abortion services should have safe, high-quality care and that abortions should be performed under the legal framework already set out by the Abortion Act.

It is vital that everyone, regardless of their views on abortion, be assured that this Bill’s provisions work alongside existing priorities of legislation, including abortion legislation. As I have described a number of times from this Dispatch Box, the powers in this Bill are solely and entirely to meet the needs of tackling this current pandemic. It is in that spirit that the Bill has moved so quickly through the House and that we have had such strong multi-party support for it.

The safety of women remains our priority, but it is vital that appropriate checks and balances remain in place regarding abortion services, even while we are managing a very difficult situation such as Covid-19. We have worked hard with abortion providers, including the Royal College of Obstetricians, and listened to their concerns, but there are long-established arrangements in place for doctors to certify and perform abortions, and they are there for good reason. We do not think that it is right that midwives and nurses are suddenly expected to take on expanded roles without prior consultation, proper training or guidance in place.

The coronavirus outbreak is a global issue. We are not the only country having to make difficult and uncomfortable changes. All over the world, clinicians and service users are coming to terms with extremely difficult workloads and workarounds to normal procedures. We are doing an enormous amount to help the NHS cope. We are doing this to protect life and to protect the NHS, but we expect doctors to work flexibly during this time. That means that certification can still take place in a timely way. It should not delay women receiving treatment. There is no statutory requirement for either doctor to have seen or examined the woman, as I described at Second Reading yesterday. Assessment can take place via telemedicine, webcam or telephone. Guidance from my department is crystal clear about that. The doctor can also rely on information gathered from other members of their multidisciplinary team in reaching a good-faith opinion. However, we do not agree that women should be able to take both treatments for medical abortion at home. We believe that it is an essential safeguard that a woman attends a clinic, to ensure that she has an opportunity to be seen alone and to ensure that there are no issues.

Do we really want to support an amendment that could remove the only opportunity many women have, often at a most vulnerable stage, to speak confidentially and one-to-one with a doctor about their concerns on abortion and about what the alternatives might be? The bottom line is that, if there is an abusive relationship and no legal requirement for a doctor’s involvement, it is far more likely that a vulnerable woman could be pressured into have an abortion by an abusive partner.

We have been clear that measures included in this Bill should have the widespread support of the House. While I recognise that this amendment has some profound support, that the testimony of the noble Baroness, Lady Bennett, was moving and heartfelt, and that the story of her witness from Lincolnshire was an extremely moving one, there is no consensus on this amendment and the support is not widespread. Abortion is an issue on which many people have very strong beliefs. I have been petitioned heavily and persuasively on this point. This Bill is not the right vehicle for a fundamental change in the law. It is not right to rush through this type of change in a sensitive area such as abortion without adequate parliamentary scrutiny. For example, there has been widespread support for measures such as permitting cremations to proceed on the basis of only one medical certificate. We simply do not have the same widespread support to make similar recommendations on the certification of abortions. For that reason, I urge the noble Baroness to withdraw the amendment.