Health and Care Bill

Earl Howe Excerpts

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

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

[Earl Howe (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Blencathra (Con)]

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

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

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

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

Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, we on these Benches said everything we needed to say on this matter in support of the noble Lord, Lord Mawson, when we had the substantial debate. I do not know when it was—last week, I think. These two amendments flow from that. We probably could have taken them then, but I am sure that the Minister will have useful things to say.

[Earl Howe (Con)]

My Lords, we return to the very important theme of subsidiarity, to which the noble Lord, Lord Mawson, has brought us in both his amendments and his powerful speech, born of his immense experience in the real world.

I will begin with Amendment 159A, if I may. One of the main reasons for introducing this Bill was to ensure that existing collaboration and partnership working across the NHS, local authorities and other partners was built on and strengthened. This relates especially to the framing and monitoring of assessments and strategies. We intend for these assessments and strategies to be a central part of the decision-making of ICBs and local authorities. That is why we are extending an existing duty to ICBs and local authorities to have regard to the relevant local assessments and strategies. Furthermore, the integrated care board and local authorities will both be directly involved in the production of these strategies and assessments through their involvement with both the integrated care partnership and the health and well-being boards. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are already several mechanisms to ensure that ICBs and local authorities will have regard to the assessments and strategies being developed in their areas. First, health and well-being boards have the right to be consulted by ICBs and give NHS England and ICBs their opinion on whether the joint forward plans take account of the joint local health and well-being strategy. Likewise, as part of its annual assessment of ICBs, NHS England must consult each health and well-being board on how well the ICBs have implemented the relevant joint local health and well-being strategies.

There are what one might call insurance policies embedded in these arrangements. Each ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy. It must also consult the health and well-being board when undertaking that review. Finally, NHS England has formal powers of intervention if an ICB is not complying with its duties in any regard. Putting all this together, we think that it is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans.

The emphasis is on collaboration. Implicit in that concept is the two-way street on the sharing of ideas and exemplars that the noble Lord, Lord Mawson, called for and illustrated in his examples. Given the strong collaborative measures in the Bill and the strong foundations of collaborative and partnership working across the NHS, local authorities and other partners on which this Bill is built, we do not think that further provision is required. We would expect an ICP to resolve disagreements through discussion and joint working rather than additional, potentially burdensome procedures.

Amendment 210A brings us once again to the role of non-statutory organisations in helping to create and sustain healthy communities. I want to stress straightaway that the Government hugely value the contributions of the voluntary, community and social enterprise sectors to the health and well-being of the nation. We recognise their important role in supporting the health and care system.

The Government fully expect that commissioners will also recognise this contribution and role going forward. This role will be particularly important in efforts to recover performance and move beyond a purely reactive service to building a sustainable and personalised health and care system, something the non-statutory sector is uniquely placed to offer. I think the lessons learned, so well described by the noble Lord, Lord Warner, in the previous set of amendments, are widely accepted nowadays.

Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

I therefore hope that, in responding, the Minister will be able to explain to the Committee why the provisions in the Bill have not taken account of these important points, and points of agreement and good practice. I hope that he will reflect on the fact that these amendments improve the Bill and will feel able to take them forward.

[Earl Howe (Con)]

I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.

Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.

The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.

The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.

At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

[Baroness Walmsley (LD)]

Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

[Earl Howe (Con)]

There will be money to address the backlog of repairs within that total.

Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.

Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.

Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.

Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.

Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.

As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

[Lord Crisp (CB)]

I thank the Minister for that reply. I have one point to make and one question. My point is that an NHS foundation trust may cover an area that is bigger than one ICB, and some of the bigger ones obviously do, so it does not quite work in the way that the Minister talked about. My question, and it is my final question, is: will officials re-engage with NHS Providers on behalf of NHS foundation trusts to discuss this matter further in the light of what we are saying so forcefully to the Government about pragmatic solutions to find a way forward to achieve the right balance and what the Minister has said in his response?

[Earl Howe (Con)]

I had not quite finished the remarks I was going to make, so perhaps the noble Lord will bear with me. I was trying to say that the measures will ensure that there is certainty for all providers about their capital expenditure. It will also prevent the need unfairly to take planned funding away from other providers, such as NHS trusts, where NHS Improvement and, in future, NHS England, set routine capital expenditure limits just to keep expenditure within system control totals, or national capital limits when a foundation trust exceeds its capital limit. Operational detail of how capital expenditure limits are set is best dealt with, we think, in guidance, where we can ensure flexibility and future-proof the provision, rather than in the Bill.

I hope that those remarks are helpful and will persuade the noble Lord to withdraw his amendment this evening. I say to him, as I did at the start, that I have listened carefully to the points he has made in support of his amendments, and points made by other noble Lords, and I undertake to take these points away for further consideration between now and Report. I am aware that my officials are working closely with NHS Providers on a number of issues, and I very much hope that we can resolve any points of difference to everyone’s satisfaction.

[Lord Crisp (CB)]

I thank noble Lords who have spoken in support of the amendment, for the very clear message that has been given. I also thank the Minister for that reply and those final remarks about thinking about this further and discussing it as appropriate with NHS Providers. On that basis, I am very happy to withdraw my amendment.

Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Earl Howe (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Barker, for bringing Amendment 20A before the Committee today, and to the noble Baronesses, Lady Walmsley and Lady Thornton, for their very wise insights. I do not think there can be anyone in Committee who does not agree that delivering high-quality reproductive healthcare is critical for the health service.

This is definitely a priority area in the Government’s work on the women’s health strategy for England. Proof of that, I hope, is that on 23 December 2021 we published Our Vision for the Women’s Health Strategy for England. The vision is informed by analysis of the call for evidence, which ran for 14 weeks from March to June 2021.

On reproductive health specifically, the vision sets out our ambition that

“women can access services that meet their reproductive health needs … and women’s experiences of services and reproductive health outcomes are improved”.

As a bit of further background, we were clear that the strategy should be evidence-based, so the vision is in fact underpinned by the analysis of what we heard through the nearly 100,000 responses to the call for evidence. We owe it to women and girls across England to get it right, and when we publish our full strategy later this year we will set out our ambitions in more detail and will follow that up with full delivery plans where appropriate.

Joined-up national policy and clinical leadership are essential to the delivery of women’s reproductive health services. I can assure the Committee that this is also recognised as a priority by NHS England and NHS Improvement. We continue to work closely with NHS England and NHS Improvement on the development of the women’s health strategy for England. We will also be working closely with NHS England and NHS Improvement on the Government’s forthcoming sexual and reproductive health strategy to ensure that, together, the women’s health and sexual and reproductive health strategies take a holistic and comprehensive approach to improving women’s reproductive health. The sexual and reproductive health strategy will consider how we can strengthen leadership and accountability in relation to reproductive health, as well as how we improve access to contraception.

Self-evidently, NHS England regards these as major areas of work. We do not, however, think it appropriate in the Bill to require NHS England to appoint an additional national clinical director specifically for reproductive health. The first reason is because, within the current NHS England and NHS Improvement, the role of national clinical director for maternity and women’s health already exists. This position is responsible for clinical advice and leadership on obstetrics and gynaecology matters, which are of course important areas of women’s reproductive health. The post is currently held by Dr Matthew Jolly. The national clinical director works alongside the national speciality advisers for gynaecology and four other national speciality advisers, covering broader aspects of obstetrics and public health. Creating an additional post of national clinical director for reproductive health is likely to be counterproductive, in that it may lead to duplication or less clarity over responsibilities and clinical leadership.

Secondly, as a point of principle, we should try to resist the urge to specify the clinical directors that NHS England should appoint. If we make a habit of doing that, it strips it of its operational autonomy. It is better to allow it to determine the directors it needs, based on the challenges it faces.

The noble Baroness, Lady Barker, rightly pointed out the disparities that exist between different groups of women in this country. I can only express my agreement with the points that she made on that subject. It is essential that we recognise that women are not a homogenous group. The different characteristics that make up each woman’s identity can lead to multiple, sometimes overlapping barriers to accessing healthcare and can contribute to disparities in health outcomes.

When we launched the call for evidence that I mentioned, we said that we wanted to better understand where there are disparities between men and women and between different groups of women. As set out in the vision, a key priority running through this work is to ensure that all women have equitable access to and experience of services and that disparities in outcomes are reduced.

In addition, NHS England and NHS Improvement regularly review their clinical leadership, including national clinical director and national specialty advisor roles, to ensure alignment with strategic priorities for the NHS and patients, as set out through the NHS Long Term Plan, and to support areas in which NHS England and NHS Improvement are taking forward major programmes of work or areas identified as priorities for improvement. In other words, this is not a static landscape. I hope that the noble Baroness will be reassured by this and so will be able to withdraw her amendment.

[Baroness Barker (LD)]

My Lords, I thank noble Lords who have contributed to this debate. I realise that time is at a premium, but it was useful to air these issues. I thank the Minister for his full response, although it was not entirely unexpected.

I do not doubt that NHS England has a number of clinical directors, but the stats speak for themselves: 45% of pregnancies are either unplanned or ambivalent and abortion rates are at their highest level. Whatever we have at the moment is not working. The call for this director came from the Faculty of Sexual and Reproductive Healthcare and RCOG; they are people who know this subject in great detail.

I know that across the NHS there are different initiatives trying to bring a greater understanding of gender in medicine. For example, for NHS England I know that the Government are working with the Royal College of Physicians to try to bring about a greater understanding of gender in medicine in the form of training for medical students. But this area of medicine is one in which information, and particularly digital transformation, is already having a significant impact and could have an even greater impact on outcomes. That in itself is a challenge to practitioners, and NHS practitioners are not always the best at dealing with that sort of challenge to their existing practice. Therefore, there is perhaps a case for refreshing the clinical leadership of NHS England in this respect.

If the stats do not improve, we will definitely have to look at this before too long. I listened to what the Minister said about the two strategies that are coming out and I will look at them with a keen eye. In the meantime, I beg leave to withdraw this amendment.

Covid-19: Vaccinations for School Pupils

Earl Howe Excerpts

Monday 17th January 2022 Lords Chamber

[Lord Kamall (Con)]

I think the noble Lord is being slightly unfair in the sentiment of his question. We have to remember that, when it came to vaccinating children, there was a huge debate around, first, whether it was ethical to do so and, secondly, whether the vaccines used for adults were effective in children. We could not really do any of that until we had sufficient data. It would have been irresponsible just to have pushed ahead without the data. Once we got the data, we started the vaccination programme for 16 and 17 year-olds and then for 12 to 15 year-olds, and we are pushing through as much as possible. Parents can book for their children on a national booking service. We expect many more parents to do so.

[Earl Howe (Con)]

My Lords, the noble Baroness, Lady Brinton, has indicated her wish to speak virtually, and I think this is a convenient point for me to call her.

[Baroness Brinton (LD) [V]]

My Lords, many parents are still saying that they have not heard when their clinically extremely vulnerable five to 11 year-olds will get their vaccinations, despite the JCVI saying that they should. Last week’s update to the GP green book now includes severely CEV children as eligible for the third primary dose, which is progress. However, there is no news for CEV young children not classed as severe, so can the Minister please say what he will do to ensure that GPs will call all these children for their vaccinations as soon as possible?

Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 13th January 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Walmsley, because she has helped me to clarify my thinking about this group of amendments. Basically, they have good intentions and they make good points about the things that need to happen, but I am not absolutely certain they need to be in the Bill. I am also particularly grateful to the noble Baroness, Lady Finlay, for her very well-informed contribution about what actually goes on. There are of course problems in relationships between the devolved nations and NHS England, some of which are down to not being very well organised, some of which are down to arrogance on the part of the bigger ones, and some of which are down to the funding not actually being available—and some of them might be politically motivated too.

Amendment 17 opens some new thinking on the subject of integration, and accepts that devolution has given us different systems for care in Wales, Northern Ireland and Scotland, but seeks to ensure that what is done in one part of the UK—that is, England—does not adversely impact on other parts. The intention to bring collaboration between the nations is, of course, commendable.

I note that Amendment 205 places some requirements such that

“Welsh Ministers, Scottish Ministers and a Northern Ireland department must make regulations providing that the choices available to patients in England by virtue of regulations under section 6E(1A) or (1B) of the National Health Service Act 2006 (inserted by section 69 of this Act) are available to patients for whom they have responsibility.”


Again, we can understand the need for consistency, but I am unclear about how that will play out against the devolved nature of healthcare—so I think the case will have to be made out for that and, indeed, why that would be included in the legislation.

In a similar fashion, Amendment 301 looks to establish interoperability around the use of data across the whole UK. Again, that is a wholly worthwhile intention, and one that I would hope that the various authorities could collectively work on and agree. Once more, what the role is for primary legislation to address this point is not entirely clear, and I welcome the discussion. I look forward to hearing what the Minister has to say.

[Earl Howe (Con)]

My Lords, I begin by thanking my noble friend Lady Morgan for raising these important matters both via this Committee and by engaging—as I understand she has recently—with my honourable friend the Minister of State for Health. I am also grateful to all other noble Lords who have spoken so powerfully and knowledgably on these issues.

There is no escaping one overarching reality in this policy area, to which the noble Baroness, Lady Thornton, has just alluded. As a Government of the whole United Kingdom, Ministers are responsible for all people of the UK; that is a given. However, while the core principles of the NHS are shared across all parts of the United Kingdom, it is the devolved Governments in Scotland, Wales and Northern Ireland who are responsible for developing their own health policies. Health is largely a devolved matter in the UK, and the commissioning and provision of health services for people in Scotland, Wales or Northern Ireland will continue to be a matter for the devolved Governments.

It will not surprise my noble friend to know that the UK Government continue to respect existing devolution settlements, so our aim is close collaboration with the devolved Administrations to deliver the best outcomes for the people across the four nations. This means that, while we are sympathetic to the spirit of these amendments, I am afraid that we cannot accept them.

I shall address the detailed issues. On Amendment 17, I agree with my noble friend that there is more we can do to align our healthcare for the good of patients across the United Kingdom. We are already exploring several projects to support the NHS to work more closely across the UK, and this includes refreshing the current memoranda of understanding between all four Governments and working with the Office for National Statistics to establish a number of UK-wide datasets. Steps like that will improve transparency and collaboration for the good of all patients across the UK. We do not believe that these steps require primary legislation, but we will keep that question under review. We will also continue to work with NHS England to ensure that a number of groups that it currently hosts, such as the rare diseases advisory group, and their specialised commissioning processes, also meet the relevant needs of the devolved Administrations.

Turning to Amendment 205, we know that choice of healthcare is an important right for patients across the UK. The NHS Constitution for England, for example, enshrines the patient’s right to informed choice. We will be preserving the important right for patients in England to choose their first elective outpatient appointment, GP and GP practice through regulations made under powers provided by the Bill. NHS England works closely with the devolved Governments, including on commissioning and ensuring access to specialised services. Requests for patients to have treatment in other nations are generally to secure continuity of care, to provide care close to patients’ support mechanisms, or because of specialist expertise.

The health services in Scotland, Wales, and Northern Ireland already have the power to contract with any NHS provider in England. As my noble friend Lord Lansley rightly pointed out, they already have in place arrangements for commissioning specialised services from English providers, including cross-border agreements, referral schemes and service-level agreements. Taking further steps, as suggested in this amendment, would place a significant burden on a smaller number of providers, particularly those along borders, with consequences for the smooth running of those health systems. From a legal perspective, such a change would be a significant impingement on a devolved competence and would require the consent of the devolved legislatures. Of course, patients matter most, but such a change would also be unlikely to greatly benefit them, since they are already served by existing arrangements.

Amendment 301 deals with data interoperability. The UK Government are committed to working with officials across the devolved Administrations to explore the benefits that healthcare data can provide while working collaboratively to respect the devolved nature of this work. As in other areas, we are looking at ways to improve collaboration on data matters and address issues with data sharing. There are commitments within the data strategy for health and social care to work across central government and the devolved Administrations to improve appropriate data linkage, thus supporting people’s health care outcomes. This builds on the work of units such as the Joint Biosecurity Centre, and the newly established UK Health Security Agency.

That work will help us to collaborate to solve public health issues, improve disease surveillance and overcome any behavioural or structural obstacles to appropriate data sharing across our respective health and social care systems. In addition, we are speaking to the Office for National Statistics about collecting data on performance and outcomes across the UK. We are pursuing this with it, working in concert with the devolved Administrations. The ONS has assured us that it does not need additional powers to gather such data.

The problems encountered by the daughter of my noble friend Lady Fraser in proving her vaccination status are being actively addressed on both sides of the border. I must concede that the problems are not fully resolved yet, but understand that a Covid status pass from Wales, Scotland or Northern Ireland will be recognised in England and vice versa.

[Lord Bradley (Lab)]

My Lords, I am sorry to interrupt, but I have been meaning to ask this question for a while. Will that also apply to students who currently study abroad and had their first vaccinations abroad, and who then come back to work in their home country? Will that be connected to the NHS app as well?

[Earl Howe (Con)]

Rather than give a wrong answer to the Committee, I had better take advice on that and write to the noble Lord, if he will allow it.

I say to the noble Baroness, Lady Walmsley, that if we look at this area in general, we are clear that we must and will continue to work closely with the devolved Administrations to ensure a fully interoperable, UK-wide approach to healthcare, including in relation to the provisions in this Bill.

It is worth adding that the devolved Administrations already have powers in legislation under Section 255 of the Health and Social Care Act 2012 to request NHS Digital to collect and analyse data, so they have that ability if they wish to exercise it. I am very grateful for my noble friend’s interest in this important area. I assure her that we will continue to keep listening to ways in which we can make the NHS work for all four nations of our union. It is vital that we do so and implicit in the collaborative processes we are engaged in. However, for the reasons I have set out, I ask my noble friend to understand why I am unable to accept this amendment.

[Baroness Morgan of Cotes (Con)]

I thank my noble friend very much for his response. Although this has been a short debate, it has been a very good one. It has certainly been very helpful in noble Lords on all sides sharing their experiences and thoughts. It has raised some important issues and some comments on drafting. I am grateful to noble Lords for them. It has also enabled your Lordships to share some practical experiences, not least about the NHS Covid app. It sounds as if it is moving towards a resolution.

I was slightly amused that some of those who said that these issues do not need to be addressed in the Bill are often those who say that other issues need to be addressed in primary legislation so, when we are talking about consistency, we all need to think about that.

I am very grateful to my noble friend for saying that he agrees that more needs to be done and is being done to align healthcare across the United Kingdom and for stressing the importance of collaboration. I will, of course, withdraw this amendment, but the amendments in this group raise important issues and I hope that discussions can continue. As the noble Baroness, Lady Walmsley, I think, said, this is about practical, positive treatment and outcomes for patients, which is what we all want to see regardless of where they live.

Health and Care Bill

Earl Howe Excerpts

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[The Lord Bishop of London]

My Lords, I declare my background as a former government Chief Nursing Officer and non-executive director of a number of healthcare trusts. I was not going to speak, but I have listened to noble Lords’ comments today and I come down with the noble Baroness, Lady Harding, in saying that we should not stipulate what skills are required of a board too tightly. What is in front of organisations changes over time, so the chair needs to be empowered to change. However, one caveat is that it would be wise to consider having somebody on the board with a background in patients. I speak from experience as a clinical professional: we can too easily forget the patient and to see things through their eyes. Far too often, we see things through the eyes of the clinician, which is not always in the best interest of patients.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who took part in this short debate, and particularly the noble Baronesses, Lady Merron and Lady Walmsley, and the noble Lords, Lord Patel and Lord Howarth, for bringing these important issues before the Committee. As they made clear, these amendments seek to make changes to the membership and composition of the board of NHS England. Amendment 2 also outlines the conditions that should be met for the appointment process.

Like my noble friend Lady Harding, I am in sympathy with the spirit of these amendments. It is imperative that the membership of the board of NHS England is able to represent the diverse needs of patients and the populations they serve, as well as their twin functions of commissioning and holding commissioners and providers to account.

I was very much in sympathy with the principles and sentiments expressed by the noble Lord, Lord Howarth, in speaking to his Amendment 3. Executive members of the board are selected based on their expertise and ability to manage the delivery of NHS England’s functions. It is also important that non-executive members have the right skills and backgrounds to effectively support and challenge, and hold the executive to account.

I hope I can reassure noble Lords on the existing and planned board membership arrangements. We absolutely aim to ensure that the most suitably skilled and experienced candidates are appointed to the fully merged NHS England board. The legal provisions therefore need to be flexible, and I can tell the Committee that they already are. Existing provisions setting out the membership of the NHS England board in the NHS Act 2006 already provide the flexibility required for the fully merged NHS England to lead our more integrated health and care system.

I agree that robust governance arrangements are absolutely necessary to oversee public appointments, particularly to NHS England. Unlike appointments to integrated care boards, the appointments of the chair and non-executive members of NHS England are public appointments made by the Secretary of State. As your Lordships are undoubtedly aware, as public appointments, they are managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. These appointments are made on merit in a fair, open and transparent manner. In line with the governance code, they require due regard to be given to ensuring that they properly reflect the populations they serve, including a balance of skills, expertise and backgrounds—exactly as sought by this amendment, as I understand it. We are fully committed to the importance and value of both candidate diversity and equality of opportunity.

The commissioner works with government to encourage candidates from a diverse range of backgrounds to consider applying for public appointments. All public appointees are expected to uphold the standards of conduct set out in the Committee on Standards in Public Life’s Seven Principles of Public Life, as included in the Code of Conduct for Board Members of Public Bodies. The code sets out, clearly and openly, the standards expected from those who serve on the boards of UK public bodies and includes a clear process for managing any conflicts of interest.

--- Later in debate ---

[Baroness Walmsley (LD)]

My Lords, I am certainly with the noble Baroness, Lady Finlay, on the issue of outcomes. Like her, I am a member of the All-Party Group on Cancer, and I was right behind our former chairman John Baron’s attempt to get a clear focus on outcomes. I am delighted to see how successful that has been.

My Amendment 8 is very simple. It would prevent the Secretary of State tinkering too often with the mandate. As others have said, the mandate is the primary instrument through which the Secretary of State provides the Government’s direction to the NHS. He is right to do so, since the NHS uses the most enormous amount of our money and is of vital concern to every voter and taxpayer—those whom the Government represent.

However, the NHS is a little like the “QE2” in that it is absolutely enormous and takes quite a while to change direction. Indeed, a great many levers have to be pulled for it to do so. Chief executives, boards and professional staff need time to set new plans, targets and employment policies—to say nothing of moving the money around—to comply, as they must, with changes to these mandatory directions from on high. It is therefore highly undesirable for a Secretary of State to change the mandate too frequently. As the noble Baroness, Lady Thornton, said, even when it happens, adequate notice and reasons must be given.

Other amendments in this group deal with other aspects of the mandate, but I want to be fully assured that, given the difficult tasks we set our NHS, its outline instructions and targets are not unfairly changed too often. I feel justified in having this concern, because the evidence of clauses later in the Bill indicates to me a tendency by the Government to want to meddle where meddling is inappropriate and could have negative effects. I refer, of course, to the Secretary of State’s attempted power grab, which we will discuss later in Committee.

Can the Minister assure me that there is already some effective measure that would prevent the mandate being changed more than once in any financial year, which would make it very difficult for the NHS to comply?

[Earl Howe (Con)]

My Lords, I am glad to be able to respond to these amendments relating, in their several ways, to the NHS England mandate. I will cover each in turn.

I begin with my noble friend Lord Lansley’s Amendment 4. I confess that I am not in the least surprised that he, of all noble Lords, should have reminded us of the key importance of the NHS outcomes framework. Amendment 4 would require the Secretary of State to specify objectives that will help NHS England achieve improvements in the outcomes provided for in the NHS outcomes framework. As he and I remember clearly, the NHS outcomes framework is a set of indicators that provide for national-level accountability for the health outcomes that the NHS delivers. The first version was published in 2010 to inform the first mandate to what was then still known as the NHS Commissioning Board. In essence, it looks at long-term health trends across various domains, including quality of care and patient experience. It is a valuable resource and, as my noble friend knows, remains an important tool for measuring the NHS’s contribution to improving outcomes over the long term.

I quite agree with my noble friend that progress against outcomes is vital. That is why we have included Clause 3 in the Bill. One of the main advantages of a longer-term mandate is that it will allow us to take a longer-term view of progress against outcomes that can be measured meaningfully only across a number of years.

The noble Lord, Lord Patel, asked who will be responsible for improving outcomes. The answer is that NHS England and ICBs have duties in relation to improving the quality of services. I can assure him that we will hold them to account for doing so. Having said that, we are moving now to a system-wide approach. That entails the need to measure shared outcomes across health and the wider social care and public health system. Some of these outcomes are led by the NHS but many are system-wide, so the business of measuring patient and service-user outcomes will inevitably become more sophisticated.

We want to ensure that our system is flexible and able to adapt as those system approaches develop and mature. I hope my noble friend therefore appreciates why we would not want to enshrine the NHS outcomes framework in the mandate in statute, in a way that might limit or compromise our ability to explore broader system approaches as we go forward. However, I seek to reassure him that the NHS outcomes framework will continue to be a vital tool to look at long-term trends in health outcomes and the NHS’s role in supporting health outcomes. That basic role for the NHS outcomes framework will not change.

I fully understand the concern of the noble Baroness, Lady Thornton, in her Amendment 7 that the mandate should not be revised unnecessarily and without good reason. I completely agree with that sentiment; again, it lies behind our desire to look at the mandate over a longer timeframe than has hitherto been possible. My concern is that her amendment goes much further than, I suspect, she intended, because it would prevent the mandate being revised at all in anything other than an urgent or unforeseen situation. That would be unhelpful, because it would wholly prevent planned changes to reflect, for example, evolving strategic priorities, emerging evidence of need or even a planned general election.

The purpose of Clause 3 is to strengthen the role of the mandate by enabling the Government, where appropriate, to set a mandate that can endure, rather than having an annual use-by date. Looking back to our debates on the Health and Social Care Bill in 2011, the noble Baroness will remember that it was always the intention that the Government should set a multiyear mandate, and Parliament agreed. In practice, that intention has been hampered by the inevitability of an annual review of the mandate to a fixed deadline—a deadline that does not neatly align to a number of events and strategic processes, including the Budget, spending reviews and general elections. Clause 3 addresses this. I seek to reassure the noble Baroness that there is no intention to revise mandates unnecessarily at the drop of a hat, as it makes no sense to do so.

I am grateful to the noble Baroness, Lady Walmsley, for highlighting a similar set of issues to those raised by the noble Baroness, Lady Thornton. Her Amendment 8 would prevent the Government revising our mandate for NHS England more than once in the same financial year, for any reason. As I said to the noble Baroness, Lady Thornton, I completely understand her concern that the mandate should not be revised so frequently that NHS England is unable to plan for or deliver government priorities effectively. This is why I reassure her that this will not happen, except in the most exceptional of circumstances. I hope she accepts that reassurance, because it cannot be in the interests of any Government, or of patients and service users, to set a mandate that changes NHS priorities too frequently. I expect any such revisions to be very rare. As I have indicated, though, one can imagine that they may be necessary to respond to unforeseen events, to reflect the result of a general election or to signal future shifts in priorities at a point when the NHS is planning ahead. The Government need the necessary mechanism to deal with these and other similar eventualities.

The noble Baroness will see that Clause 3 already contains an explicit safeguard in respect of reasonableness: NHS England will not be obliged to revisit a business plan that it has already published, should the Government revise the mandate within a year of its issue. The Government will also have a continuing duty to consult NHS England before making any revision. I believe that, in combination, these two safeguards work together to fully answer the point that the noble Baroness made.

Health and Care Bill

Earl Howe Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Baroness Uddin (Non-Afl)]

My Lords, I spent some decades of my personal and professional life trying to improve health and social care through the statutory and voluntary sector. I welcome the prospect of refining the Bill in the interest of service users and staff alike, to whom I pay my deepest respects in the light of what has been an impossible and worsening situation for the health of our nation.

I recently witnessed two contrasting events: a patient in an acute ward for mental health, and another progressing though intensive care and then a surgical ward. The staff shortage and lack of adequate care support is indeed grave at every level, and I know my family will not be the first or last to share these harrowing experiences. Therefore, my principal reaction to the many aspects of this ambitious legislation and the report on adult social care is that they ring hollow as wishful prayers.

The Government have said that the Bill is driven by NHS demand. I fear that most frontline staff across the service do not agree; nor have they asked for the inevitable fragmentation and the huge structural upheaval which may result, given the existing shortage of staff and funding within the NHS and care sector as it struggles with Covid.

Of course, I hope that the panacea on the written papers will improve service users’ actual experience. Given the glaring lack of any meaningful references to workforce development and, ominously, of any indication that the long-standing consequences of inequalities and discrimination are being addressed, my confidence is rather low at this point.

We are asked to respond to a 10-year plan fit enough to address a massive, long-standing crisis where people are waiting to receive the urgent care to which they are entitled: 1.5 million hours of commissioned care is not being delivered and at least 400,000 adults and families are waiting for formal assessment. This gravely undermines the human rights of those who may already be experiencing a great deal of indignity, pain and desperation. Does the Minister accept that the new proposed boards and commissioning structures may create an even greater backlog of unmet needs?

How do the Government propose to address these anomalies while introducing the new challenges of means-tested personal care and private care companies into an already frail NHS, which struggles to manage current demands? According to the Royal College of Nursing, the Bill as it stands does not address nursing staff concerns, ensure patient safety or give adequate weight to staffing shortfalls in the NHS and the social care sector.

According to other leading experts, including ADASS, £1 billion for the social care sector, while extremely welcome, is not aligned to the reality of the £7 billion investment required to meet urgent needs, and is unlikely to remedy the current crisis in social care. The fear is that the prolonged and chronic historical underfunding—the insufficient resources allocated for social care in the community, which is a disjointed system at local level—will exert even more pressure and cause untold misery and suffering for individuals and families who are among the most vulnerable: the elderly, the disabled with learning disabilities and autism, and people needing mental health support. Integrated care will therefore remain dysfunctional locally, regardless of the fact that half the available social care budget is spent on working-age adults with learning and physical disabilities and the elderly to empower care in the community.

We know that supported housing is seen as a critical linchpin of independent living and is projected to increase by 2030. With only £300 million for these options, does the Minister accept that the Government will have to broaden their reach to widen the network of providers, including specialist and BAME providers, to provide comprehensive and equal care across all communities?

How will these proposals affect the lives of black and Muslim men experiencing mental health crisis who are festering in hospital wards without adequate support, counselling and rehabilitative programmes, and with next to nothing on prevention? I am pleased to hear the new announcement for funding for drug and alcohol treatment. As an experienced leader in the field of dealing with substance misuse at local and national level, I can assure the House that adequate funding for resources and social work support is indeed effective in preventing revolving doors, which can save the NHS and the justice system millions. As the distinguished noble Lord, Lord Ramsbotham, clearly and eloquently said, the Bill should be the right place to consider this service.

Caring institutions and organisations are often run by poorly paid and undertrained staff, including social workers, who are once again in our sight for scrutiny. I declare my interest as one. I have worked in child protection and with domestic violence victims and survivors, as well as those with disabilities and substance misuse problems. I understand the horrendous pressures at the front line.

I have two final points. The APPG on Children, alongside many leading NGOs, is anxious that the Bill does not do enough to bring the benefits of integrated working to children and families. I support its asking the Government to commit to assess the Bill’s impact on children within two years of its implementation. Lack of investment in social work, police and education has once again led us to a tragic death, that of Arthur Labinjo-Hughes. As a social worker, I have witnessed the demeaning and catastrophic effect of child abuse. Heartbreakingly, it is a fact that lessons learned from what happened to diminish the hope, the smiles and Arthur’s last breath may not prevent the last cry of a child unless we empower staff at the front line of managing complex violence and abuse in our midst.

Finally, I draw the House’s attention to the points raised by the Inter-Collegiate and Agency Domestic Violence Abuse coalition. It views the Bill as an opportunity to deliver the health needs of survivors of domestic abuse. It rightly asks that the guidance for integrated care systems and partnership boards be placed on a statutory footing to ensure that it is adhered to across the health service. I agree with the noble Lord, Lord Shinkwin, that this guidance should also apply to those with learning disabilities and communication needs.

I welcome and congratulate noble Lords—

[Earl Howe (Con)]

My Lords, contrary to the clock, the noble Baroness has been speaking for nearly eight minutes. Perhaps she could bring her remarks to a conclusion.

[Baroness Uddin (Non-Afl)]

I welcome and congratulate the noble Lord, Lord Stevens of Birmingham. I hope that we will all work together to enhance this Government’s efforts for better regulation. I hope that we can safeguard the needs of the most vulnerable in our society.

Medicines and Medical Devices Bill

Earl Howe Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Monday 26th October 2020 Grand Committee

Relevant documents: 19th Report from the Delegated Powers Committee, 10th Report from the Constitution Committee

[Earl Howe (Con)]

My Lords, it may be for the assistance of noble Lords if I make a short statement before we recommence proceedings. As noble Lords will be aware from my noble friend Lord Bethell’s letter to Peers of 13 October, the Government have tabled a number of amendments for consideration in Grand Committee. Many of these amendments are designed to address criticisms of the Bill expressed by noble Lords at Second Reading, and in particular by your Lordships’ Delegated Powers and Regulatory Reform Committee and Constitution Committee, in an endeavour to provide reassurance to this Committee at an early moment.

Unfortunately, it has since come to light that the Government’s intention to move these amendments in Grand Committee, which we had believed was implicit in my noble friend’s letter and understood from subsequent discussions, had not in fact been clearly and properly communicated. I further understand that there was a two or three-day delay in noble Lords on the Labour Front Bench, and perhaps others, receiving the letter. I apologise to the Official Opposition, Liberal Democrat Peers, noble Lords on the Government Benches and those on the Cross Benches for the shortcomings in our communications, which, I need hardly add, we shall use our utmost endeavours not to see repeated.

There is a substantive reason why the Government wished to move their amendments in Grand Committee. It is that, according to the clear advice we have received, a legislative consent Motion by the Northern Ireland Assembly cannot be put in motion until such time as the government amendments to which I have referred become part of the Bill. Were we to delay approval of the amendments until Report, our clear advice was that this would put back the Northern Ireland legislative consent process by up to three months. Such a delay would in turn have serious consequences for the completion of this Bill, whose importance in the context of the United Kingdom’s exit from the European Union cannot be overemphasised. It is very important for the health of the public that we achieve a timely completion which does not leave us without a means of passing necessary regulations at the start of 2021.

These were the reasons why, in the short adjournment that took place during last Monday’s Grand Committee proceedings, we asked noble Lords to allow two government amendments to go through on that day. We did so particularly bearing in mind that the alternative to moving the amendments was to withdraw them, which might in turn have signalled to the Northern Ireland Executive that the amendments no longer represented government policy. We are sincerely grateful to noble Lords for their understanding and for the agreement reached on that occasion. As I have indicated, we made that request to noble Lords in good faith, driven by clear legal advice relating to the process around Northern Ireland consent Motions. Since then, some doubts have been cast on whether that advice was in all respects accurate. It is still our belief that it was, but we are seeking urgent confirmation of this, which we shall convey to noble Lords at the earliest opportunity.

More importantly, however, for this Committee, we have received unequivocal legal advice from the Public Bill Office that, notwithstanding any amendments approved in Grand Committee by unanimity, it is open to the House, and indeed to individual noble Lords, to return to the issues covered by such amendments on Report and to debate and vote on any further amendments that noble Lords wish to table. That means that by allowing government amendments to go through in Grand Committee, noble Lords would not be precluded from returning to those issues, in any way they chose, on Report. On behalf of the Government, I undertake that the Government will raise no objection to this if it is the wish of noble Lords that such further debates take place. If, notwithstanding the assurances I have given, any noble Lord wishes to object to a government amendment spoken to in Grand Committee, the Government will withdraw that amendment. In the meantime, it is the Government’s wish to enable all noble Lords to engage with Ministers and officials as fully and as regularly as they may require in an effort to achieve what we all desire for this important Bill, which is understanding and, if possible, consensus across the House.

[Baroness Thornton (Lab)]

I thank the noble Earl for that statement, which is extremely helpful. I am alarmed, or surprised, that we are at this stage looking at a grey area about whether or not it is necessary for these amendments to be moved and accepted. It is very important that that is clarified, and I would just like to make one or two other points.

Grand Committee is for probing; it is for consensus, and then it is up to the House to take the decisions on Report about that. These amendments, which we are being asked to nod through, really are not consistent with what the Companion says Grand Committee is there for, so the clarification that we will have to return to these at a later stage is, of course, absolutely necessary.

However, that also means that on Report we will have a Bill before us that is not the same Bill as we have now. It will have been significantly amended in some very significant areas of policy. So I am writing to the Constitution Committee and the Delegated Powers Committee today to ask them to look again at the Bill. When the amendments have been accepted, it will not be the same Bill as we have now.

We will not negative the amendments today, because I accept the noble Earl’s statement and, on the balance of risks, the Opposition would not wish to delay the Bill for three months, into next year. We can see the dangers that that would represent. However, I ask the Government to examine the proposal made by my noble friend Lord Hunt to the Minister and the Bill team in a meeting to discuss the issue. That was that they should look at paragraph 8.127 of the Companion and consider removing from the Bill all the government amendments concerned with this issue. We could then take those in a group at the end, on the Floor of the House. That would give us time to do the stuff we have not yet done and discuss the substance of the amendments.

If the Minister and the Bill team had come to us a month ago and said, “We’ve got this problem with the Northern Ireland consent process, and this is what it means,” we would not be having this discussion now, because we would have worked out how to resolve that problem. I regret that that is not what happened and I hope that we will now move forward in a more positive way. Finally, we will look carefully at what is added in Grand Committee as a result of these very particular circumstances and we may seek to delete or amend some of the government amendments at the next stage of the Bill.

[Baroness Jolly (LD) [V]]

With the Northern Ireland component, a time constraint was imposed on the Committee, and people have been looking at ways of solving the problem since our previous meeting. Since 8.30 am I have been in various meetings with various people looking for ways forward. The one described by the noble Earl, Lord Howe, is on the table and has been agreed by all party spokespersons. It was finally agreed at a meeting with the Minister and others at 1.30 pm. Like the noble Baroness, Lady Thornton, I am grateful to the noble Earl for his help in resolving this issue.

[Earl Howe (Con)]

I am grateful to both noble Baronesses for their responses. I think that this provides a basis on which to proceed with our Grand Committee debate today, pending further clarification on the matters that I referred to earlier between now and Wednesday, our next Grand Committee day. I can assure noble Lords that my colleagues and I will endeavour to achieve that clarity, which we will disseminate at the earliest opportunity.

[Baroness Thornton (Lab)]

I thank the noble Earl. I think that we probably need to continue this discussion, to make sure that we end up in the right place, with a Bill that we can take forward to Report.

Penrose Inquiry

Earl Howe Excerpts

Thursday 26th March 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, with the leave of the House, I shall now repeat, in the form of a Statement, an Answer given in another place by my honourable friend the Minister for Public Health on the Penrose inquiry. The Statement is as follows:

“Yesterday, the Prime Minister issued an apology on behalf of the Government for these tragic events, and my right honourable friend the Secretary of State for Health laid a Written Ministerial Statement as an interim response to the Penrose inquiry. I would, however, like to remind the honourable Member for Hull North that this is a Scottish public inquiry, and I understand that Scottish Ministers will not be making a Statement to their Parliament until this afternoon. It would therefore be inappropriate for me to comment about the report in detail at this stage.

However, I can say that Lord Penrose reviewed more than 118,000 documents and more than 150 statements from patients and relatives and also took oral evidence from many of the officials involved in decision-making at that time. It would therefore seem to be an extremely thorough job, which for the first time provides an authoritative narrative of events.

I said in this House during a Back-Bench debate on 15 January that this Government would be making an interim response to Lord Penrose’s report, which we did yesterday in a Written Ministerial Statement, and that it would be for the next Government to consider a more substantive response, once they have had time to consider what the inquiry says.

Yesterday, we announced that we will be allocating up to an additional one-off £25 million from the Department of Health’s 2015-16 budget to support any transitional arrangements to a different system of financial assistance. We intend this to provide assurances to those affected by these devastating events that we have heard their concerns and are making provision to reform the system.

We had hoped to consult during this Parliament on reforming the ex-gratia financial assistance schemes. I very much regret that our considerations on the design of a future system of financial assistance for those affected have been subject to postponement while we awaited publication of Lord Penrose’s final report. The Prime Minister also said yesterday that if he were to remain Prime Minister after the election in May, we will respond to the findings of the report as a matter of priority”.

My Lords, that concludes the Statement.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for repeating that Answer. Clearly the Penrose report is a detailed factual account of what happened, and I pay tribute to Lord Penrose for the work that he and his team have completed.

I noted the noble Earl’s comments this afternoon that we have the initial response, but that the full response is to be left to the next Government. It is clear that the report needs very careful reading in order to come to a substantive view. Certainly, as a Minister, I dealt with this issue in my time at the Department of Health—I see the noble Lord, Lord Fowler, and other former Ministers here—and Dr David Owen has on a number of occasions drawn attention to some issues about the way this was handled by the Department of Health. On the face of it, does the noble Earl think that at the very least this warrants some discussion about whether his own department needs to establish some kind of view on the Penrose report?

Lord Penrose made a single recommendation: that all people in Scotland who had a blood transfusion before 1991 should be tested for hepatitis C. Again, is that to be left to the substantive response after the election, or can he give an initial view on the implications of that recommendation for people affected in England?

The noble Earl referred to relief. Can he say anything about the Skipton Fund payments and progress made on that fund since its establishment in 2004, and about decisions that I believe were made by the Government in January 2011 with regard to payments to the estates of people who died prior to the announcement of the scheme in August 2003?

One of the stark conclusions from reading the report is about what could be described as the paternalistic view taken by doctors on information to be given to patients. He says that the expert evidence available to the inquiry indicated the withholding of information from patients on the absence of treatment for the condition, which from a contemporary ethical perspective was not acceptable. Does the noble Earl agree with that, and does he consider that circumstances have moved on such that today such information would not be withheld?

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. There is no doubt that Lord Penrose has done a very thorough job in examining the facts. It is worth understanding that he has considered the evidence from England as well as Scotland.

I pay tribute to those who showed tremendous courage in telling the inquiry about the impact of infection on their lives and the lives of their families. The report has systematically examined the facts and set them out. As well as other inquires, such as the Archer inquiry, with which the noble Lord is familiar, this report has now given us a detailed account of what happened, which is extremely valuable. I agree that there will be a need to reach a formal view on Penrose’s conclusions once my department and the next Government have had an opportunity properly to consider the conclusions that he reached.

As for Lord Penrose’s recommendation to offer a hepatitis C test to everyone who had a blood transfusion before 1991, the department conducted a look-back exercise in 1995 to try to identify everyone who might have received infected blood prior to 1991. We will consider whether anything more can be done on this in England, although obviously Lord Penrose’s recommendation relates specifically to the Scottish Government taking steps along these lines. We have already done an exercise to identify anyone who could have been affected, and we will consider whether anything more should be done on this.

The noble Lord asked about the Skipton Fund, which, as noble Lords will remember, is there to make non-discretionary payments to patients infected with hepatitis C. To date, over 5,100 individuals in the UK have received the stage one payment and around 1,500 have received a stage two lump sum in the UK, with around 700 receiving annual payments in the UK.

[Lord Fowler (Con)]

My Lords, I am very glad to hear the Government’s pledge to give all possible help to those who have been harmed through no fault of their own. However, with respect that pledge has been given before. It is very important this time that it is properly, and above all generously, followed through.

Does my noble friend agree that we should take note of Lord Penrose’s statement, following his very detailed and long inquiry, when he said yesterday:

“Much of the comment made over the years on the topics discussed in the Final Report has reflected strongly-held beliefs. Some commentators believe that more could have been done to prevent infection in particular groups of patients. Careful consideration of the evidence has, however, revealed few respects in which matters could or”—

more importantly—

“should have been handled differently”.

Will my noble friend endorse that conclusion?

[Earl Howe]

My Lords, if my noble friend will forgive me, I do not want to be drawn too closely on Lord Penrose’s comments, as we should reflect on them carefully. However, it is clear that, as knowledge of these viruses began to emerge in the 1970s and early 1980s, no tests were available to screen blood donations and no means existed to inactivate the virus in blood or blood products. By 1985, a screening test for HIV was available, and heat-treated plasma products that inactivated the virus had been developed. It was not until 1990 that an effective screening test for hepatitis C was available. It is important to put that into context, because Lord Penrose found that clinicians acted in accordance with the technical facilities that they had available to them and in accordance with the ethical frameworks that were in place during the 1970s and 1980s. The ethical frameworks in which clinicians operate today are of course very different from those that were in place then.

[Baroness Masham of Ilton (CB)]

My Lords, looking ahead to the future with the new Government, would the noble Earl agree with me that there are new drugs coming along for hepatitis C? For those poor, unfortunate patients who had haemophilia and who got HIV and hepatitis C, it really was a disaster. Would he consider, if he is still a Minister, that the very best treatment with these new hepatitis C drugs will be given to these patients? That would prevent liver disease, which is a huge problem.

[Earl Howe]

The noble Baroness makes a very important point. NICE guidance on the first of the new hepatitis C drugs is expected in June this year. Pending that, in April last year NHS England introduced an early access scheme for the new hepatitis C therapies. Over 700 patients have now been treated as a result of that policy, including some of those who were infected by blood or blood products in the 1970s and 1980s. NHS England is considering a further early access policy to include patients with cirrhosis, which it is aiming to have in place in the first half of this year. I think that should be of comfort to many patients.

[Lord Hope of Craighead (CB)]

I am very grateful to the noble Earl for repeating the Statement. He may be aware that the report was very badly received by the public in Edinburgh, which is a source of concern. One of the people, no doubt someone affected by the disaster, was shown on television burning the report. Against that background, and appreciating of course that this is primarily a Scottish matter, will the noble Earl take steps to ensure that the Statement itself and some of the reassuring remarks that he and indeed the noble Lord opposite have made are drawn to the attention of the media in Scotland, as the more it can be put across that this is a valuable report that has done a great deal of work and sets a basis for further study, the more the public will be reassured? I would be grateful if the noble Earl would do that.

[Earl Howe]

I am happy to undertake to use my best endeavours in that regard.