Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, this group contains a number of helpful amendments. I welcome the amendments that the Government have tabled in response to the many and varied discussions we have had. I am grateful for this positive and constructive approach, which proposes transparency at the heart of procurement.

We have discussed with the Government at some length why the NHS has to have its own bespoke procurement regime, which the Bill paves the way for. We have seen two consultation documents about the scope, scale and nature of this bespoke regime. Although they seem quite sensible, we have been assured that the Government feel that the regulations will be based on a sound foundation.

The noble Lord, Lord Warner, is quite right about patients not knowing their right to choose. It is a hole in the provision. The right to choose is very important. People absolutely do not know that they have it.

While not being explicit, the new providers’ selection regime will actually get us to where Labour tried to get in 2010 with the NHS as the preferred provider, at least as far as the many complex and expensive services provided by NHS trusts, FTs and other core patient-facing services are concerned. Therefore, the principle is fine. The problem is that it does not extend across everything that the NHS procures, and that is partly the nub of what my noble friend said in his amendments, which I will return to in a moment.

Our view is that in any circumstances where competitive procurement is to be used, the national rules apply, so why does the NHS need a bespoke system for all non-clinical stuff? We have never actually had an answer to that, except that the NHS comes up with wider regulations, and we feel that that it is a waste of time and effort. However, we have had ample assurances from the Government that the NHS bespoke regime will be properly documented and all the rules set out, with some route to enforcement and challenge. We are assured that there will be no award of contract without applying the process that is set out—no back doors and no flexibility when contracting with private companies. With those assurances in mind and the knowledge that campaigners and trade unions will be vigilant and might even stump up for judicial review, and because of the ICB amendments agreed earlier in the week, we will get more or less what we wanted and we will not try to remove Clause 70 from the Bill.

I turn to the remarks of my noble friend Lord Hendy, who has our sympathy and approval. Had we been discussing this at a different time of day, we may have sought to support some of his amendments, and certainly the spirit of them. He has posed a legitimate question to the Minister: why do the Government not insist on good employment of staff as a criterion for their procurement regime?

We on this side of the House remain opposed to the outsourcing of NHS-funded services such as cleaning, catering and many others because we can see that it has led to staff being transferred into the private sector, corners being cut and standards dropping. It has been a symptom of chronic underfunding and it is a terrible long-term strategy. It has of course been completely counterproductive because it has sometimes meant that our hospitals have not necessarily been cleaned, serviced or looked after as we might have wished them to be. We have tried at various stages to introduce safeguards and to outlaw altogether the NHS’s tax-dodging habit of setting up SubCos, but those are probably matters for another day.

I would say to my noble friend that I am not sure that changing the procurement regime is the best way forward for this issue, although he has our support in the politics and context in which he introduced his amendments.

[Earl Howe (Con)]

My Lords, before addressing the amendments in the name of my noble friend Lord Lansley and the noble Lords, Lord Hendy and Lord Warner, it may be helpful if I speak to the six government amendments in this group: Amendments 101 to 104, 106 and 107. The first five of these amendments would amend Clause 70, which inserts a new regulation-making power in relation to the procurement of healthcare services, Section 12ZB, into the NHS Act 2006. They amend the clause so that regulations, when they are made under this power, will have to include provision for procurement processes and objectives, for steps to be taken when competitively tendering and for transparency, fairness, verifying compliance and the management of conflicts of interest. Amendment 106 also requires NHS England to issue guidance on the regulations.

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Moved by

[Earl Howe]

101: Clause 70, page 63, line 35, leave out “procurement by relevant authorities” and insert “processes to be followed and objectives to be pursued by relevant authorities in the procurement”
Member’s explanatory statement
This amendment changes the principal regulation-making power in relation to procurement so that regulations under the power will have to include provision for procurement processes and objectives.

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Moved by

[Earl Howe]

106: Clause 70, page 64, leave out lines 7 and 8 and insert—
“(4) NHS England must publish such guidance as it considers appropriate about compliance with the regulations.” Member’s explanatory statement
This amendment requires NHS England to publish guidance about compliance with any procurement regulations that are made.

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Moved by

[Earl Howe]

107: Clause 71, page 64, line 31, at end insert—
“(b) in section 272 (orders, regulations, rules and directions), in subsection (6), after paragraph (zzd), insert—“(zze) regulations under section 12ZB,”.”Member’s explanatory statement
This amendment means that regulations made under new section 12ZB of the National Health Service Act 2006 (as inserted by Clause 70 of the Bill) will be subject to the affirmative procedure rather than the negative procedure.

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[Baroness Merron (Lab)]

My Lords, it is impossible to turn away from the connection between procurement of products and services and the message and support that such procurement may give to those who seek to exploit, oppress, damage and murder.

I thank the noble Lord, Lord Alton, for introducing this amendment, in the name of the noble Lord, Lord Blencathra, who we wish well. Genocide and the abuse of human rights do not respect the imposed boundaries of government departments, and that is why it is appropriate that these amendments, which have extensive support both inside and outside your Lordships’ House, have been tabled today. Amendment 108 has cross-party support and if the will of the House is tested, we on these Benches will support it.

The NHS is the biggest single procurer of medical products in the world. It has a huge amount of leverage to be a force for good or otherwise when it comes to ethical procurement. It can starve abusive regions of resources. It can also remove a veneer of acceptability from those regions.

If we are serious about being global Britain and a force for good in the world, we need to act as such. It is surely wrong that, for example, we are using bandages which have been produced by forced labour. We must hold the Government to their commitment to provide guidance and support to UK government bodies to use public procurement rules to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. As expressed by my noble friend Lady Kennedy, this is about giving the Minister the opportunity to act. It is about focusing minds. I hope that the amendment will find favour with the noble Earl.

In Committee, my noble friend Lord Collins spoke of the need not to be tied down by a very strict legal definition of genocide. He also emphasised that we must focus on broader human rights issues. As the noble Lord, Lord Alton, said, we need to take a comprehensive, joined-up approach. Amendment 108 gives us this opportunity.

I thank my noble friend Lord Hunt for continuing to press home the need for action, as outlined in Amendments 162 and 173. We heard explicitly and movingly about the realities of how this affects people’s bodies, alive and dead, and the distaste and abuse related to it. It is surely right that UK citizens are safeguarded against complicity in forced organ harvesting as the result of genocide. Countries such as Spain, Italy, Belgium, Norway and Israel, among several others, have already taken action to prevent organ tourism in respect of China. We have the opportunity to do so today.

I hope that the noble Earl will feel able to accept these amendments. I am grateful to the noble Lord and his officials for the opportunity to discuss these matters. I hope only that your Lordships’ House can assist in improving this aspect of the Bill by taking action, as we should, about genocide and the abuse of human rights.

[Earl Howe (Con)]

My Lords, the amendments in this group bring us to three discrete topics which are nevertheless linked by a common thread—that of human rights. Because they engage us in issues of great sensitivity, I begin by saying something that may sound unusual. There is probably no one in this Chamber who is not instinctively drawn towards these amendments. All three are honourably motivated. In pointing out any shortcomings, I would not want noble Lords to think that the Government did not understand or sympathise with why they have been tabled.

I will start with the issue of organ tourism. Like the noble Lord, Lord Hunt, I find it abhorrent that individuals exist who are in the business—often the lucrative business—of sourcing human organs from provenances that are both illegal and supremely unethical. They then entice desperate and seriously ill people to go to a foreign country to have such organs transplanted within them. This idea is unconscionable. As far as we can, we should have no truck with it. The Human Tissue Act already prohibits the giving of

“a reward for the supply of, or for an offer to supply any controlled material”

in any circumstance where a substantial part of the illicit transaction takes place in England, Wales or Northern Ireland.

The Modern Slavery Act makes it an offence to arrange or facilitate another person’s travel, including travel outside the UK, for the purposes of their exploitation, which includes the supply of organs for reward in any part of the world. The law as it stands addresses a substantial element of potential criminality. How widespread is this criminality? What do we know about the scale of organ tourism as it relates to UK residents? I have obtained some figures from the department. In 2019-20, the last reporting year before international travel was curtailed by the pandemic, a total of 4,820 organ transplants took place in this country. At the same time, NHS Blood and Transplant data shows that only seven UK residents received a transplant abroad, many if not all legitimately, and had follow-up treatment in the UK.

Therefore I am thankful to say that the scale of the problem of illicit organ tourism, as it relates to UK residents, is small. If the noble Lord, Lord Hunt, were to say to me that one such case is one too many, I would agree, but the House should not support this amendment, because it is not right to support an amendment that could cause vulnerable transplant patients who receive a legitimate transplant overseas to face imprisonment because they may not have the right documentation. That is what the amendment could lead to. Checking such documentation and creating individually identifiable records for every UK patient who has received a transplant overseas would put healthcare professionals in an invidious and inappropriate position by blurring the line between medic and criminal investigator.

More to the point, it could also prevent those who legitimately receive an organ transplant abroad—particularly those from minority-ethnic backgrounds—from seeking follow-up treatment, for fear of being treated as a criminal suspect. Following that thought through, I say that the effect that this amendment could have in exacerbating health inequalities is likely to be far greater than its effect in deterring transplant tourism, especially, as I have emphasised, because there are already legal provisions in place covering most cases of organ tourism.

I listened with care to the noble Baroness, Lady Finlay, particularly regarding her examples of the exhibition that she went to. I join her in being somewhat incredulous that there could be consent to some of the exhibits that she witnessed. However, where consent has been obtained, it must be unequivocal. As I emphasised, the law as it stands now prohibits the exhibition of bodies or body parts where express consent cannot be fully demonstrated. I undertake to speak to the Human Tissue Authority, to see that, should there be another exhibition of this kind proposed, there is full transparency in the form of labels under each exhibit making clear how consent was obtained and what it consisted of.

Targeting those who receive an organ, rather than the traffickers and their customers who initiate or negotiate the arrangements, risks imprisoning vulnerable patients who may have been misled as to the provenance of their organ. That would be disproportionate. The Government’s view remains that the best approach is to continue targeting traffickers and their customers, while doing all that we can to help UK residents who are in need of an organ by focusing our efforts on improving the rates and outcomes of legitimate donations.

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[Baroness Finlay of Llandaff (CB)]

Before the noble Earl sits down, may I apologise to the House? I should have declared that I am the UK chair of Commonwealth Tribute to Life, which aims to establish a memorandum of understanding across the Commonwealth over ethical transplantation.

The Minister, in his reply, spoke of seven patients who are known to have travelled abroad for organs. Most of those were legally arranged, so the numbers are very small; yet the clinical services in the UK are not aware that it is illegal to arrange to purchase an organ abroad if most of that transaction happens in the UK, or to procure the travel to go. I wonder whether the Minister would be able to undertake to work with us in NHSBT to ensure that all the clinicians working in the field are aware of this and can brief patients appropriately at the time they sign up to be on the transplant list, so that they understand that, although they are eligible for a transplant, they should not be seeking transplants in other countries, even when tempted to do so. It can look quite alluring, and I am concerned that, within the profession itself, there might be some misunderstanding. I realise this is a difficult question and the Minister might prefer not to answer it now; it might be something we could discuss later.

[Earl Howe (Con)]

My Lords, that is a perfectly valid question from the noble Baroness, and I would be happy to take that back to those in the Department of Health and Social Care who have direct responsibility in this area.

[Lord Alton of Liverpool (CB)]

My Lords, I know that this is a complex and long Bill, and that the House will want to move quite quickly to the next business. I will end by simply thanking every noble Lord who has participated in today’s debate, especially the noble Baronesses, Lady Walmsley and Lady Merron, from the opposition Front Benches, and the noble Lords on the Government Benches who have supported the noble Lord, Lord Blencathra, and the noble Baroness, Lady Hodgson, at every stage of the progress of this amendment.

I know that when the noble Earl, Lord Howe, said that he was instinctively drawn to these amendments, and that he found many of these practices abhorrent, he was speaking as he feels. I am grateful to him, not only for the meeting that we had yesterday with the noble Lord, Lord Kamall, but for his promise to look at this further. Among those to whom I would like to introduce him is a Uighur surgeon I have met, who has given evidence here in the House about being forced to remove organs and to kill the patient in the course of that. This is the ethical issue here. If people profit from that in any way whatever, even if inadvertently, we must not be complicit.

A year ago, we were promised that there would be an urgent review of exports to Xinjiang and fines for businesses which failed to comply with the Modern Slavery Act, when parliamentary time allowed. Those things have not happened. The urgent review has just been completed, but it ended up dealing only with military exports and there have been no fines applied one year later. It is never the right Bill or the right time. The noble Lord, Lord Forsyth, and I were told this on the telecommunications Bill, we were told it again on the then Trade Bill. We are told it on every Bill. That is why it is inevitable that we come back with amendments like this until the comprehensive plan, to which the noble Earl referred, actually happens.

The House really needs to send this amendment further. We have had between Committee and now for the Government to help us redraw it, if there are any defects or flaws. I am unaware of what they may be; they have never been pointed out to us. The noble Earl also knows that the Government could say to us, “Bring this back at Third Reading and we will help to draw up such an amendment.” However, I am told that this is not possible either. Therefore, the only way for us to ensure that this amendment can proceed and be perfected is to send it to another place. I am glad to be able to tell the House that a former leader of the Conservative Party, Sir Iain Duncan Smith, has agreed that he will personally promote this amendment if it is passed in your Lordships’ House today and take it further there. He says that he is with us 100%. I would like to seek the opinion of the House.