Organ Donations

Baroness Merron Excerpts

Tuesday 12th December 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I pay tribute to my noble friend Lord Hunt, not just for securing this important debate and raising so many issues in a clear and methodical fashion, but for his work in taking the Bill through to fruition to become an Act. Of course, he continues to champion this very important cause, and for that, he deserves all our thanks.

Before the Organ Donation (Deemed Consent) Act came into force in 2020, it did receive cross-party support. Of course, there were concerns, but it was agreed across the parties that the previous law needed to be changed. The Act was praised as a key part of shifting the debate on the commitment to and resourcing of organ donation: an Act that would push forward thinking—that we should look beyond that legislation coming on to the statute book. As was highlighted then, and as we must highlight again now, the campaign to increase the number of organ donors did not end with the Act; it was always intended that the Act would push it forward, and that is what we are talking about tonight.

On the impact of the Act itself, the Government have already said in an Answer to a Written Question that

“it may never be possible to distinguish the true impact of opt-out legislation due to the impact”

of the pandemic. To some extent, that is completely understandable, because Covid-19 was disruptive in so many ways, but particularly with donation numbers decreasing by some 25%. However, perhaps the Minister can explain why, as time goes on and we are more distanced from the pandemic, that picture will not become clearer. Is it because Covid-19 disrupted attitudes towards organ donation, or because the disruption itself meant that processes were not put in place to correctly measure the difference? Or was something else going on? It would be helpful to understand that.

Is there a reason to believe that organ donation levels, putting the Act on one side, would not have evened out, either by now or at some point in the future. At what point should we be able to see the proper impact of the Act?

Regardless of the causes, it is, of course, as my noble friend Lord Hunt said, disappointing that the consent rate of 61% remains significantly lower than the predicted 78%, simply because there remain many more people waiting for organs than there are receiving them. In simple language, more donations are required.

Again, as my noble friend said, the latest NHS report said there were almost 7,000 people waiting for a transplant at the end of March, with almost a further 4,000 temporarily suspended from lists. This is an increase of 47% on the previous year, while the number of donors went up only 2% on the year before. This sadly means that some 439 people died who were on the active list, while a further 732 were removed from the list, mostly because they became ineligible due to deteriorating health. It is not a situation that we expected to see when the Act came in.

The noble Lords, Lord Allan and Lord Weir, spoke about families and their importance in all of this. It is interesting to note that the main reasons for families not supporting organ donation are: first, that the patient previously expressed a wish not to donate; secondly, that the family may feel that the length of time for the donation process is just too long; and, thirdly, that the family are not sure whether the patient would have agreed to donation. What is striking about that list is that none of those reasons requires further legal changes if we are seeking to improve the number of donors, especially where patients are unsure.

I think this debate has touched on that, and I would like to refer to two of the points that have already been raised. The first is about communication. During the passage of the Bill, the need for a comprehensive communications strategy and media campaign, as well as for increased resources for our healthcare structures, was raised, in order that everybody has the information they need to make what is a very important choice in an informed fashion. It would be helpful to hear from the Minister what the Government have been doing in these areas, particularly since the Act came into effect. What assessment has been made about what still needs to be done in terms of communication?

We know a number of people have said that the process is just too long. What is being done to make the process shorter and less burdensome, in order to reduce the number of people who opt out of choosing to donate organs for that reason?

The other area that has been raised in this debate and needs to be addressed is the disparities in representation in organ donation. NHS Blood and Transplant has stated that, despite an increase in the proportion of opt-in registrations from BAME donors over the past five years—with the work done to improve that engagement being praised, and we should add our praise to that—there remain under-representation and lower consent rates. So I hope the Minister can highlight what steps are being taken to deal with this continuing disparity, as well as the disparities that are so evident regionally. London has a consent rate of 51%, compared with 72% in the south-west. With the average in England and Wales being 61%, bringing regions such as London and the Midlands, with their lower consent rates, up to the average, could save lives.

Looking to the other end of the process, it is welcome that the Government announced earlier this year that they would be taking forward recommendations from the Organ Utilisation Group, to reduce the number of organs that are not properly utilised and to provide more consistency in the levels of performance and care that patients receive. While demand for organs exceeds supply, these efficiencies are especially important to tackle. So perhaps the Minister could also update your Lordships’ House on the progress in implementing these recommendations and, while I would not expect there has been any noticeable impact at this stage, what difference do the Government project that these changes will make?

For me, this debate is an important one; it keeps the issue in focus. I am sure that the Minister shares many of the concerns that have been raised this evening and I look forward to hearing his response on how we how we can work to save more lives through organ donation.

Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023

Baroness Merron Excerpts

Wednesday 6th December 2023 Lords Chamber

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

My Lords, I thank noble Lords for their attendance today at this important debate. I am sure of course that my speech will convince at least three of your Lordships to come the other way.

I pay tribute to the Secondary Legislation Scrutiny Committee for its third report of Session 2023-24, which considered this statutory instrument. I thank the noble Baronesses, Lady Merron and Lady Bennett, for their amendments in relation to today’s debate. I hope I will be able to address these topics and the questions from Members today.

During strike action, our utmost priority is to protect the lives and health of the public. Minimum service levels will give the public much-needed reassurance that vital ambulance services will continue through strike action, ensuring that NHS employers can provide life-saving services when the public needs them most. During this year’s strike action, some unions, including ambulance unions, have put in place voluntary arrangements for covering essential services, but those arrangements are entirely dependent on good will from unions and staff. Even where they are in place, as they were for the ambulance strikes, there is uncertainty and inconsistency across the country, creating an unnecessary risk to patient safety.

I am pleased that we are debating this secondary legislation, which is necessary to enable NHS ambulance trusts to implement minimum service levels for ambulance services during industrial action. Informed by responses to our public consultation, we have set out the MSL to ensure that employers can issue a work notice to provide that all calls about a person with a life-threatening condition, or where there is no reasonable clinical alternative to an ambulance response, receive a response as they normally would on a non-strike day. The regulations also provide for an MSL in respect of healthcare professional response requests, inter-facility transfer services requests and non-emergency patient transport services.

The MSL we have is broadly in line with the services provided on a voluntary basis by most unions when there was strike action in ambulance services last winter. We do not want to restrict individuals’ ability to strike more than necessary. The unions recognised that these services needed to continue then, and by introducing this legislation we are providing a safety net so that the public can be assured that these essential services would continue in any future strike action.

The responsibility for determining staffing levels on both strike and non-strike days remains with clinical leaders at local level. These regulations do not set a minimum level of service generally. Instead, they set a level of service that will allow NHS employers to issue work notices so that, for the services caught by the regulations, the same level of care can be provided to patients as if it was a non-strike day. These regulations do not set a higher level of service than they would have on a non-strike day.

Our Government do recognise that these regulations will restrict ambulance workers’ ability to strike. That is why we have committed to engage in conciliation in the event of national disputes over ambulances in the future, if unions agree that this would be helpful. This is a significant and appropriate commitment; it recognises that we are restricting some workers’ ability to strike so that we can safeguard the public’s right to life and health. We hope NHS employers will do the same for local disputes, and strongly encourage them to do so.

While the territorial extent of these regulations is England, Scotland and Wales, the territorial application of this instrument is limited to England. Employment rights and duties and industrial relations are reserved to Westminster for Scotland and Wales. However, health services are largely devolved and the responsibility for delivering health services in Scotland and Wales falls to the respective Governments. We none the less stand ready to support the Scottish and Welsh Governments should they wish to introduce MSLs, and we have already reached out to offer our assistance.

I now turn to the amendments which have been tabled to these regulations by the noble Baronesses, Lady Merron and Lady Bennett of Manor Castle. I will start with the regret amendment—that the regulations contain detail that was not in primary legislation.

The Government are grateful to the Delegated Powers and Regulatory Reform Committee for its consideration of the Strikes (Minimum Service Levels) Act 2023 during its passage. In its report, the committee commented that the Act did not contain detail on what the minimum levels of service for the relevant sectors were. As discussed during the debates on the Act that Parliament passed earlier this year, the Act establishes the legal framework that enables these regulations. Each sector where minimum service levels can be brought has its own complexities, and it is right that government enables relevant employers, employees, trade unions and their members, as well as members of the public who are affected by this legislation, to contribute to the relevant consultation and have their say on minimum service levels. It is therefore appropriate that these regulations contain the specific details on how the MSL will affect the relevant service, given that the detail was not present in the Act.

With regard to these regulations, the Department for Health and Social Care undertook a public consultation and additional workshops with key interest groups. The responses and feedback we received from employers, trade unions, charities and other representative groups have informed the drafting of these regulations.

I now turn to the second aspect of the amendment from the noble Baroness, Lady Merron—that the regulations do not reflect the policy positions taken by the Government in their response to the consultation. I have taken from the amendment put forward by the noble Baroness that she was referring to the fact that we were clear in our consultation response, and will continue to be clear, that, if employers are confident that the minimum service levels can be met without issuing work notices, they need not do so. This is implicit in the primary legislation itself—employers have a power to issue work notices, not an obligation to do so. The purpose of these regulations is to provide early certainty for employers about what level of service is to be provided, and a safety net for trusts and reassurance to the public that vital emergency services will be there when they need them. Although, in the main, appropriate derogations were provided by ambulance service unions last winter, our experience of strike action in different parts of the NHS this year has shown that we cannot rely on the good will of unions to provide appropriate derogations.

I now turn to the potential for the regulations to be burdensome. The department is currently considering whether further guidance is needed for employers and trade unions in the health sector to help with implementation of the regulations. This is in addition to the work undertaken by the Department for Business and Trade to publish work notice guidance and a code of practice that provides practical guidance on the implementation of minimum service levels for employers and trade unions. The Government have also committed to working with employers and trade unions to improve and strengthen the process of agreeing voluntary derogations. The department is currently scoping options on how best to take this work forward.

I now turn to the fatal amendment, which claims that the regulations will

“expose trade unions to liability of up to £1 million”.

I agree with the comments of my noble friend Lord Johnson, who spoke earlier today on the Department for Business and Trade’s code of practice. These regulations, however, are not where this £1 million liability comes from. The code will provide greater clarity to trade unions and employers which should help avoid expensive litigation. The code will also protect unions from the very liabilities that the noble Baroness raises in her fatal amendment.

I wish to address the suggestion that these regulations make trade unions enforcement agents of NHS employers and His Majesty’s Government. I wholeheartedly disagree with this suggestion. Naturally, on a strike day, NHS employers will ask staff who have been named in a work notice to comply with that work notice. It is the Government’s view that it is right and proportionate that there is some limited obligation on trade unions to help ensure that the minimum service level is achieved during a strike.

I must reassure your Lordships that these regulations are not at all about straining industrial relations between employers, trade unions and the Government in the NHS. These regulations would help create certainty and clarify expectations between NHS employers and trade unions regarding the level of cover available to the public on strike days. This greater clarity can only be beneficial for the relationships between trade unions and NHS employers. I therefore call on all noble Lords to reject this fatal amendment.

[Baroness Merron (Lab)]

My Lords, in the previous debate, my noble friend Lord Collins ably set out why the Act, the code of practice and the associated regulations will exacerbate conflict in the workplace and do more harm than good, in this case to NHS staff in the ambulance and patient transport service, as well as to employers and the public. I will not repeat the evidenced arguments we have already heard, but I support the view that the Government has got this one in the wrong place.

Noble Lords will have heard and be well aware that Labour has promised to repeal the Strikes (Minimum Service Levels) Act when we get into government, and I reiterate that we stand by that pledge. I note the fatal amendment again tabled by the noble Baroness, Lady Bennett of Manor Castle, and I hope that she will now agree that it is not the role of an unelected Chamber to frustrate the will of the other place, but I hope that she will find it possible to agree with the comments from my noble friend Lord Collins, who said that the only democratic way to get rid of this unworkable legislation will be through the election of a Labour Government.

These regulations are marked by draconian content which does not align with the more conciliatory language in the Government’s consultation response, in which there is significant emphasis on the potential for voluntary arrangements as an alternative to the issuing of work notices, to take one example. As the consultation document says:

“Instead of expecting that employers will always issue work notices to ensure”


that minimum service levels

“are met, we recognise that they may be able to secure the same level of coverage through voluntary derogations, and they can continue to agree and rely on these instead, as long as they are confident that the MSL will be met. Where employers decide that voluntary agreements are sufficient, this will give union members more flexibility on strike days; instead of either being on strike, or not, they can choose to strike but leave the picket line if needed, as they do currently”.

I observe that this kind of language and its tone and content fails to be reflected in the regulations, which are highly prescriptive in their insistence on how things absolutely must be. Perhaps the Minister could explain this disconnect. Does he accept that in times of industrial unrest, it is the language of conciliation that is needed?

--- Later in debate ---

Moved by

[Baroness Merron]

As an amendment to the motion in the name of Lord Markham, at end to insert “but that this House regrets that the draft Regulations contain policy detail that was not included in primary legislation, contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; do not reflect the policy positions taken by the Government in its response to the relevant consultation; and go against evidence received by the Government which suggests that their implementation will be challenging.”

[Baroness Merron (Lab)]

My Lords, both in opening and responding, the Minister described these regulations as a “safety net”. However, these regulations can stand a chance of being a safety net only if they are actually workable. As I and other noble Lords, as well as employers, unions and many others, have forensically set out, they are not workable.

I thank the noble and learned Lord, Lord Thomas, for his comments recognising that we are dealing with a contentious issue and that contentious issues call for meaningful debate in this Chamber. This nicely complements the point I made that, in times of industrial unrest, meaningful discussion is also needed outside the Chamber, rather than a rigid, prescriptive, one-size-fits-all, inflexible and unworkable approach, as we have in these regulations. I beg to move, and I wish to test the opinion of the House.

Cancer Research UK Report

Baroness Merron Excerpts

Tuesday 5th December 2023 Lords Chamber

[Lord Markham (Con)]

I am not clear on the details of the case but will happily take it up with the noble Lord afterwards. I agree that, clearly, we want our leading institutions spending money where they can really impact change, and that is exactly what we are doing.

[Baroness Merron (Lab)]

My Lords, while any benefits of early cancer diagnosis will not be realised without timely treatment, the Government continue to not nearly meet the NHS target of 85% of patients starting treatment within 62 days of an urgent referral for suspected cancer. What assessment have the Government made of treatment delays on death rates, as well as anxiety levels for patients? If the Minister accepts the statistics that increased waiting lists for cancer treatment predate the pandemic, what will the Government now do differently?

[Lord Markham (Con)]

We absolutely need to bear down on cancer wait times. That is why we have been expanding supply in this area: the 130-plus CDCs, which have done 5 million tests, are all about that, as are the 50 surgical hubs. This means that we are treating 26% more cancer patients this year than last year and that we have managed to reduce the 62-day backlog by 27%. More work needs to be done, but we are getting on top of it.

Sexually Transmitted Infections

Baroness Merron Excerpts

Tuesday 5th December 2023 Lords Chamber

[Lord Markham (Con)]

I thank my noble friend. As she knows, I am a big advocate of everything that we can do with the app. We are absolutely looking to extend its services, which will include sexual health clinics. In the past year alone, we have increased from around 10% of GPs allowing someone to see their records to around 70% today. Sexual health clinics are clearly an area that we need to look at next.

[Baroness Merron (Lab)]

My Lords, with a real-terms cut of nearly a third for sexual health services over the past eight years, it is ever more difficult to get an appointment. Given that STIs increased by 24% last year alone, what assessment have the Government made of the potential to improve access to sexual health services through the universal provision of postal STI tests in England—something that Wales already offers?

[Lord Markham (Con)]

We are leading the world in all these areas. In a recent survey across the European nations, we came out top in sexual and reproductive health services, which I want on the record. Just last week, everything that we are doing in the HIV space was recognised as part of all this. This is another area in which we are looking to widen access as much as possible. I mentioned the examples of an online service in Brighton and, to the noble Lord, Lord Hunt, Pharmacy First. We are looking to make sure that access and testing are as widely available as possible.

National Health Service: 75th Anniversary

Baroness Merron Excerpts

Thursday 30th November 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I start by thanking my noble friend Lord Hunt for his visionary introduction. We share the privilege of both being former Health Ministers and are therefore also fortunate to have the benefit of insight into how things can be, with the right approach by government.

My noble friend Lord Dubs spoke of the value of quality public services. As he was doing so, and while we were having such a passionate and intelligent debate, I was sorry to hear the sad news of the death of Alistair Darling, a giant of public service and former Member of your Lordships’ House. May his memory be for a blessing.

In the wake of the Second World War, the Labour Government founded the National Health Service through the leadership of Prime Minister Clement Attlee and Health Secretary Nye Bevan. While the values on which it was founded still survive, its ability to deliver on them, as we have heard today, has been greatly diminished by the biggest crisis in its history and by stagnation; while the world, the whole of our country and the expectations and demands of the people in it have changed around it, not least through the widening inequalities in healthy lives and access to healthcare that the right reverend Prelate the Bishop of London so clearly identified. The current situation is so dire that leaders at the King’s Fund, the Health Foundation and Nuffield Health felt a need to write on the 75th birthday of the National Health Service to the leaders of each major political party, urging change.

The content of their letter was stark and bears reflection. According to it, the NHS has insufficient resources to do its job, fewer beds than almost all similar countries’ services, equipment that is out of date and inadequate, buildings that are falling down, and inadequate IT systems to do the job. It does not have enough staff, so people’s needs are not being met, whether they are patients on the receiving end or staff seeking to do the job; and it does not matter how hard-working those staff are because they are struggling to deliver care of a quality that people need and deserve. As my noble friend Lord Prentis emphasised in speaking about the whole team, whether we are talking about the cleaner or the consultant, all play their part. The letter also said that any plans to move care from hospitals to closer to people’s homes have seen movement in the opposite direction only. All of this, while public satisfaction is at its lowest level in 25 years, with no let-up in sight.

This is the key question that I always think of when we discuss waiting lists and the other challenges for the health service: can the Minister explain to your Lordships’ House how the Government got us to this stage? They have had 13 years in which to improve things; it is impossible to ignore the role of government—the role this Government have played since 2010.

Of course, I am sure the Minister will point to the pandemic. My noble friend Lord Brooke acknowledged, as I would, that it is clearly a factor. However, even prior to then, between September 2009 and September 2019, waiting lists almost doubled to 4.4 million. Now, that waiting list stands at 7.8 million, which is an all-time high. The waits are felt across the National Health Service. In A&E, nearly one in three people is waiting over four hours. Category 1 ambulance calls take almost two minutes longer than the seven minutes that they should, and the 62-day cancer treatment target has not been met since 2015.

Unsurprisingly, the failures are not limited to the most high-profile areas, as my noble friends Lady Taylor of Bolton, Lord Cashman, Lady Crawley and Lady Donaghy all referred to. To name just some, nearly 2 million people of all ages are waiting for mental health treatment, with about three-quarters of that number of people being out of work with mental illness just between January and March this year. The economic as well as the individual impacts of this failure are quite clear.

In ophthalmology, patients wait for surgery to address preventable sight loss, while patients are also being lost to follow-up with no route back to primary care if treatment has started. In social care, as highlighted by my noble friends Lord Dubs and Lady Pitkeathley among others, the autumn survey of the Association of Directors of Adult Social Services found that 250,000 people were waiting for an assessment of their needs, and almost the same number again were waiting for their care and support to begin or to be reviewed. What are the Government doing to address the lesser talked-about areas that still have real significance to people’s lives and well-being?

Returning to waiting lists, the Health Foundation believes that, by next summer, the list could be over 8 million. What is the Minister’s response to this prediction? Have the Government done their own modelling on the length of waiting lists? What responsibility do the Government take for the impact of their policies, and therefore what action will they take? In the spirit of co-operation that has been mentioned in this debate, perhaps I could offer a suggestion to the Minister, who is, of course, welcome, as he knows, to adopt any of the commitments that have been given by Labour. To take immediate action to cut these waiting lists, what about paying staff extra to provide the extra clinics and appointments that patients so desperately need? If this Government will not do it, if Labour is in government, we certainly will.

That is just about the immediate. As we have heard today, the UK’s population is undergoing a massive age shift. More than 11 million people over the age of 65 are living in the UK now, and in a decade this is expected to rise to some 22% of the population. As my noble friend Lady Pitkeathley said, it is to be celebrated that we have an ageing population. But, sadly, growing numbers of older people are experiencing poverty, discrimination and poor health in their advancing years. This, therefore, requires a reset, but primarily in health and care, with a new focus on prevention and community care, driven by technological advances that we can take advantage of today—as my noble friend Lord Drayson highlighted.

Training more GPs, district nurses and health visitors, harnessing technology and AI, giving NHS and care workers fair pay and fair terms and conditions, joining up services and giving patients the choice that they want to help achieve these things: that is what a Labour Government would do. Why have this Government not done this?

The noble Baroness, Lady Finlay, and other noble Lords called for a change of focus from dealing with sickness to prevention. This is not only common sense; it makes economic sense too. Research by the Centre for Health Economics at the University of York found that spending through public health functions in local government is up to four times as cost effective as NHS spending—something my noble friend Lady Taylor of Stevenage brought her great wisdom to. The Government clearly know this, as their own 2019 Green Paper said:

“The 2020s will be the decade of proactive, predictive, and personalised prevention”—


but they simply have not followed through. As my noble friend Lord Davies highlighted, the failure to provide for the reform of the Mental Health Act—something that Labour has committed to doing if in government—is the clearest example of not following through. However, as we have heard today, there are many other examples.

At 75 years, the NHS, its workforce and all the people it serves deserve better. If this Government will not fix the crisis they have created and give the NHS the reform and support it needs, somebody else will have to do that. We stand ready to do so.

Health Protection (Coronavirus, Testing Requirements and Standards) (England) (Amendment and Transitional Provision) Regulations 2023

Baroness Merron Excerpts

Monday 27th November 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I thank the Minister for introducing these regulations, to which we too are pleased to give our support. We have clearly moved on from where we were in 2020, when the original Covid regulations for testing service providers were agreed and “lateral flow device” was not a household term. Looking back to 2020, these Benches supported the regulations then because we recognised the urgent need to enable new service providers to meet the demand for testing services. We also noted that that had to be balanced with the importance of public health protections and regulations to build safeguards into the system and, so importantly, to give people the confidence that services could be trusted to keep them safe.

As the Minister outlined, the regulations apply to clinical Covid-19 testing services such as diagnostic laboratories or those that carry out point-of-care testing. The regulations will mean that these services are no longer subject to the additional requirements introduced early in the pandemic and, as such, reflect an update to meet us where we are now. They also reflect the update to the international standards since last year.

It is important to acknowledge what the regulations will not change. As the Minister said, providers will still be required to seek accreditation against the appropriate ISO standard. Test devices will still need to meet the requirements set out in the Medical Devices Regulations 2002, just as they did before the pandemic. In my view, this strikes the right balance. As the UK Health Security Agency has noted, accreditation was not mandatory prior to the pandemic but NHS England and Public Health England endorsed all medical laboratories being accredited with the United Kingdom Accreditation Service. The process for laboratories to achieve accredited status took anywhere between six and 12 months. Given the changes we are discussing, how long does the Minister expect the accreditation process to take now?

As it is so important that we learn lessons from the past and apply them to the future, I have a few questions on this generality to the Minister. What confidence does he have that new providers will be able to meet the various deadlines to meet the new ISO requirements? How will the regulations we are discussing be enforced? Does the United Kingdom Accreditation Service have the resources it needs for enforcement? How many fines have been issued to non-compliant providers since the 2020 regulations came into force?

I am sure that the Minister will agree that it pays to think about the state of the market now. How many UKHSA-accredited providers were there at the pandemic’s peak, and how many are there now? As some companies wind down their Covid-19 testing capacities because of reduced demand, what assessment has the department made of how the market is changing and how such diagnostic capabilities could be deployed to meet other ends?

In concluding, I take the opportunity to ask the Minister about one of the biggest scandals among private providers during the pandemic: that relating to the company Immensa. Local public health experts were baffled as to why an NHS Test and Trace contract had been given to the company while high-quality diagnostic services, such as those at the University of Birmingham, were being wound down. Immensa was awarded more than £100 million in a contract to carry out Covid testing in September 2021, without going through the normal tendering process. It was subsequently found to have been one of 50 firms that had been put into the priority lane for test and trace contracts worth billions. It was also found that PCR test results from Immensa’s Wolverhampton lab had misreported around 40,000 positive results as negative between September and October 2021, leading to significant additional infections at a critical time and an estimated 20 extra deaths.

I have specific questions on this issue and I would be grateful if the Minister could respond to me, if not now then in writing. Neither Immensa Health Clinic Ltd nor its related company Dante Labs Ltd was accredited by UKAS at the time of the scandal, despite the regulations that we are amending today. Immensa was a new entrant to the market and was supposed to go through the three-stage process, yet it was awarded vast sums of public money to rapidly expand the capacity of NHS Test and Trace in the autumn of 2021. One would expect high standards from a private provider in exchange, but that did not appear to be the case. An investigation by UKHSA found that, despite requirements for accreditation being written into the contract, the department and NHS Test and Trace decided that they would not apply. As such, Immensa was not accredited at the time of the false negatives scandal, even though the department claimed otherwise. Is the Minister able to confirm what actually happened in this case?

The findings of the UKHSA report risk undermining the rest of the system, if providers could not be encouraged to circumvent the correct process and there were no consequences as a result. Why were the department and NHS Test and Trace so determined that special measures should be put in place for this provider? I am not aware of any consequences for any officials or Ministers responsible for the shocking findings of the UKHSA investigation. Perhaps the Minister can confirm whether this was the case and, if so, why? Given the tens of millions of pounds of public money involved in the scandal and the dire consequences of the mistakes, can the Minister advise your Lordships’ House what efforts the Government have made to get the money back?

In conclusion, these Benches support the statutory instrument. We very much agree that now is absolutely the appropriate time to review the exceptional measures that were taken early in the pandemic while ensuring that appropriate regulation and confidence remains in place.

[Lord Markham (Con)]

I thank noble Lords for their responses and generally for the support they offer for what we are trying to do here. As I say, for a lot of my answers I will draw from personal experience. The whole of that time was extraordinary, as we know. To my knowledge, it was the first time where you had a situation in which masses of people could be tested for something. However, it needed laboratory-based testing, and suddenly the amount of volume needed for the general public was completely out of anyone’s imagination as regards the volume of the market. I remember trying to understand the rules at the time, as somebody who might set up such a company to do this, and I quickly found out that there were no rules, in that nobody had ever quite envisaged such a situation and the only rule that existed was around getting an ISO process, which typically took 12 to 18 months.

What the Government did there—again, I am speaking from the other side of the fence—was to create a good process of trying to funnel people, starting off with quite easy ways to get you through the funnel because they wanted to expand it as much as possible, but then effectively making it progressively harder while still trying to keep the good suppliers in the mix. By and large they did a decent job on that. I saw some providers completely gaming the system, in that they kept ticking the boxes as long as they were allowed to tick them and then as soon as it came to a hard task, for want of a better word, they folded up shop. There was definitely some of that, and the funnel sorted out some of the wheat from the chaff along the way, but at the same time I will not pretend it was a perfect process.

I say all this from sitting on the other side of the fence and having to jump through necessary hoops, but I actually think it was a decent process at the end of the day. As ever, I will come back in writing on all this, but my understanding was that it was a fairly similar process to that followed by other countries, and they are now going through a fairly similar process to regularise this.

As I said, I absolutely looked at the difference in outcomes versus existing regimes, and I am under no doubt that, if we kept the rules of the existing regimes, the supply would not have expanded in the way required at the time. On what the Government were trying to achieve, the evidence shows that they achieved a decent outcome, where, by and large, the quality outcomes were pretty good, although not perfect—the noble Baroness brought up a good example of where it definitely was not perfect. By and large, they did a decent job on that.

Health Care Services (Provider Selection Regime) Regulations 2023

Baroness Merron Excerpts

Monday 27th November 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I bring more cheer to the Minister by adding our support for these regulations—I thank him for bringing them before your Lordships’ House today—because the provision of this statutory instrument is to define and give relevant authorities greater flexibility to procure healthcare services. This will, I hope—I know that other noble Lords also hope this—benefit patients and service efficiency by better integrating services. Like the Minister, I am pleased to note that the policy behind these regulations has been informed by both a voluntary impact assessment and an extensive consultation that received 70% support from 420 respondents; this is welcome news.

It is the view of the Opposition that the NHS should be the preferred provider of commissioned healthcare services, not least because it embodies not just a public service ethos but efficiency, resilience and democratic accountability. It is also the case, particularly in the short term, that, in order to treat NHS patients and bring waiting lists down, the independent sector has an important role to play where a service cannot be provided by a public body because the capability or capacity just is not there.

Your Lordships’ House may recall that, when the Health and Social Care Act2012, which my noble friend Lord Hunt described as “wretched” on several occasions, went through its various stages in Parliament, these Benches argued that relevant authorities should have the appropriate flexibility to award contracts, which was something for which the Act did not provide. As my noble friend identified, the competitive tendering requirements of that Act did not serve the NHS, patients or the public at all well. Therefore, where we are today with the provider selection regime, which does allow for this, is as long overdue as it is welcome, as is seeing that good sense, flexibility and efficiency will now apply.

During the passage of the Health and Care Act 2022, these Benches also argued for the legislative provision to be made as outlined in these regulations. Although the Government did not take that on at that time, I am glad that the benefit of hindsight has prevailed and that the Opposition’s view, which was set out during the course of that debate, has now been set out in these regulations.

As the noble Lord, Lord Stevens, illustrated so well, these regulations recognise that it would not be an efficient use of resources in certain circumstances for relevant authorities to use competitive tendering, but that there continues and needs to be a procurement process that relevant authorities can and should use. As the Minister will be aware, concerns have continually been raised about the impact of the current procurement framework, which often places additional burdens on community and mental health providers in particular, where services have been much more likely to be subject to expensive and disruptive competitive tendering processes. I therefore welcome the alignment of the PSR’s aim with the spirit of collaboration within health and care systems, as well as the offer to commissioners and providers of a clear and transparent process by which procurement decisions can be made.

The PSR will offer a consistent model for both NHS and local government bodies to follow with regard to health services, and I hope that this will support local relationships and decision-making, as well as integrated care. However, it is important that national bodies engage with all organisations that will be subject to the new regime in an effort to smooth the transition to a new procurement framework.

I ask the Minister for more detail on how NHS England and the department will review the application of the PSR over the course of the next year to ensure that real-time feedback on the operation of the regime can be collected, as well as evaluated and, importantly, acted on as swiftly as possible. I make this point as it will be crucial to capture feedback on whether any difficulties arise for commissioning bodies in selecting which procurement process is the most appropriate across various different scenarios and circumstances, and whether any challenges arise for providers in the application of their approach.

My noble friend Lord Hunt emphasised the need for support, training and guidance—something that other noble Lords also emphasised. This is a point that the Minister would be well advised, as I am sure he is, to pay absolute attention to, so that we support those who work in NHS procurement and the NHS supply chain, not least because the combination of these regulations, other regulations and other Acts is something of a complex field. We should support and guide those who make the interpretation and the application, and, if necessary, adjust in real time any of that training, support and guidance. More information from the Minister about how this will be done will be extremely welcome.

I am aware that NHS Providers has worked with membership bodies for providers in the independent and voluntary sectors, the department and NHS England to make the case for the new regime to include a challenge function for decisions made by commissioning bodies to be reviewed and scrutinised if appropriate. Although the PSR panel does not have legally binding powers, does the Minister consider it appropriate to give providers some opportunity to challenge the application of the regime and raise legitimate concerns where appropriate?

As I said at the outset, I am glad to provide our support to these regulations. I hope that we can look forward to great improvements because of them in the years ahead.

[Lord Markham (Con)]

I thank noble Lords and welcome the support offered. I appreciate their understanding on my lack of comments on 2012 and all that. I also appreciate having the vast experience of the noble Lord, Lord Stevens, and wonder whether he could be here so that I can phone a friend on some of the questions we have, because I fear he may be far better qualified to answer a lot of them. I will take home the “Think like a patient, act like a taxpayer” mantra.

I think we all agree that, although this is welcome, it is complex. We are trying to set out an approach, knowing that really we want sensible people to act sensibly around the table and to co-operate with each other. We all know that it is very hard to put a rules-based system around that. As all noble Lords have mentioned, the training of staff in that is vital. I have some personal experience, as I know the noble Lord, Lord Hunt, does, of many of the people in this space, and I have to say that they are very good people. My experience is obviously much more on the national level, but clearly it needs to be taken down to the local level as well.

I believe we are publishing the strategic framework for NHS commercial tomorrow. That tries to set out the importance of commercial capability, and the investment and critical skills required. It will be accompanied by a programme that sets out what upskilling needs to be done and a programme, with support from the Crown Commercial Service, that I hope we can effectively use to upskill in the way that we all believe is necessary.

To answer the point by the noble Baroness, Lady Merron, whenever you are trying to put in place a value-based system, for want of a better word, in terms of culture, you have to have those guard-rails around making sure that there are appeals processes and lessons learned. My understanding of this independent panel is that companies or providers that feel they have been wrongly excluded will have the opportunity to appeal directly. I have challenged them quite strongly on that, given my experience in this space, and asked how much a company will really want to be awkward. Often you know that if you are being awkward and challenging, that might make life more difficult for you in future, so there are some difficulties involved there. A lot of companies often ask whether that challenge is really worth it. Getting that right, with the panel, is vital, so that it is welcoming and open and that, as the noble Baroness, Lady Merron, says, there is that “lessons learned” kind of constant review. At probably the year stage, we will look to understand how it has gone so far and what we can learn from it.

Having been involved in quite a few start-ups, I am also very aware of the point the noble Lord, Lord Hunt, made. Time really is money in these things; a regulatory process that is opaque or cumbersome is not very helpful. I acknowledge some of the issues the MHRA has had. That is what the £10 million investment behind it is trying to address. I know it is very much looking to act on this.

A very good example of that is what the MHRA is doing in the point-of-care space. One Brexit advantage that I have seen is the ability very quickly to set rules around point-of-care medicines, particularly around when you take a biopsy and then provide an individual patient with treatment according to that for a certain cancer. Clearly, if you follow the strict rules, you would have to be regulating that every single time, and that just would not work. The MHRA has introduced a sensible framework that tries to adopt an umbrella-type approach. I know that the MHRA understands the possibilities in this space and really wants to use this as an opportunity to show that we can be fleet of foot and leaders in that space from it all.

On the point raised about trusts sometimes having a conflict and the example provided by Specsavers, that is what the panels are supposed to be there for. It is important—I will check this out—that, in the rules, we are guiding the 42 ICBs on how they should manage some of those conflict situations and when they should put people aside. We have all managed it in our corporate and public lives, and there are rules about it. Just as we put the emphasis on noble Lords to declare interests and so on, clearly we must make sure that there are similar rules for the trust CEOs, but it is a point well made that we need to pick up. I look forward to going into some of these issues much more when we have the value-based procurement meeting shortly.

On how we can make the analysis available, I have seen a tool that the NHS has recently introduced which is very good in terms of being able to drill down straightaway and provide that analysis. That is a good base point. I will find out some more about how that needs to be tweaked, but there is a basic premise about making that information available—that is a sensible move. On the point made by the noble Baroness, Lady Merron, it should be used to arm providers with the ability to challenge the panels.

I welcome the input. Such is the knowledge base around this, I am happy to suggest that, in nine months or one year’s time, we have that round table where I will appreciate some of the skills here. We can ask how it has gone down so far. We can do that through a debate, but it is probably better done through a round table, so I would like to propose that so we can learn the lessons.

In summary, I welcome the points made and that noble Lords believe that this is the right direction, although it needs work along the way to make sure it stays going in the right direction and does what we hope it does. With that, I commend the draft regulations to the House.

Motion agreed.

Mental Health Act 1983

Baroness Merron Excerpts

Tuesday 21st November 2023 Lords Chamber

[Lord Markham (Con)]

Yes. The data, and fundamentally understanding what is beneath it, is key to all this. We have put an executive lead on each trust board to look at exactly these sorts of issues, including the data, so I am happy to take that forward.

[Baroness Merron (Lab)]

My Lords, the provisions of the Mental Health Act have no clear definition of a safe place in which a sectioned patient may be taken while awaiting medical assessment. That often results in vulnerable people being taken to police stations and forcibly detained by the police. What assessment have the Government made of the frequency of this continuing due to the Government’s failure to reform the Mental Health Act—something that Labour, if we win the next election, will put right? How will the Government ensure that patients are no longer detained in such inappropriate and punitive environments?

[Lord Markham (Con)]

I appreciate the feeling that our response on minimal standards—in our reply, I think, to the report by the noble Baroness, Lady Hollins —did not go far enough to make sure that those patients are in the right quality setting for them, so the noble Baroness, Lady Merron, has made an important point. I was going through with the team what we can do to make sure that that is right. As I mentioned before, the fact that the CQC now has responsibility for those independent reviews will mean that it will look not only at whether it is right that the patients are in those in-patient environments but at whether it is the right environment as an actual place.

King’s Speech

Baroness Merron Excerpts

Thursday 9th November 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, it is a great honour to be closing this important debate on behalf of His Majesty’s Opposition. This is a new chapter for our sovereign and our country and, with it, His Majesty brings the optimism and sureness that we need in these times of division and instability—both in people’s lives and across the world.

The Coronation was a visible illustration of the King’s determination to mark his reign as one celebrating the strength of our multifaith nation. For me, it was the greatest honour to make history by being a part of the ceremony, representing the Jewish community, alongside the noble Lords, Lord Patel, Lord Kamall and Lord Singh, who represented other faiths.

In declaring my interests in the register that relate to the Jewish community and in turning to the gracious Speech, I say how warmly I appreciated the acknowledgement of anti-Semitism and the need to remember the horrors of the Holocaust. Recognition of the barbaric acts of terrorism against the people of Israel exactly one month before the gracious Speech, the facilitation of humanitarian support into Gaza and support for the cause of peace and stability in the Middle East all sent a clear and welcome message.

The areas for debate across the days are crying out for the

“competence, optimism, confidence and vision,”—[Official Report, 7/11/23; col. 11.]

underpinned by good governance, of which my noble friend Lady Smith spoke on the day of the gracious Speech. But what did we get? Ambition, not for the country but for this Government to stay in office; little to inspire or give confidence that the Government really understand the seriousness of the challenges that households and our country face; and widespread cause for profound disappointment, as we have heard today and as my noble friend Lady Twycross set out so clearly in opening this debate.

I would like to focus on the health and social care aspects of the gracious Speech. Let me start with something we can receive well. From these Benches, we look forward to the passage of the tobacco and vapes Bill, although at present it seems that the Government still do not know how to tackle vaping. We are sleepwalking into a new generation of young people being hooked on nicotine through vaping, when the Government should have been coming down hard on the industry, starting with banning the branding, advertising and marketing of vapes to children, actions to which Labour has committed. It is worth reminding ourselves that an amendment to the Health and Care Bill in 2021 that proposed getting the ball rolling in this way was voted down.

Professor Sir Chris Whitty has put it very well:

“The key points about vaping … can be easily summarised. If you smoke, vaping is much safer; if you don’t smoke, don’t vape; marketing vapes to children is utterly unacceptable.”


Reports not so long ago suggested that the Government were considering an outright ban, but now they are exploring and consulting on options. I look forward to hearing from the Minister about when we can expect a clear plan from the Government.

I turn to just some of the glaring omissions from the gracious Speech. The NHS workforce plan, on which the gracious Speech leant heavily, has failed to consider social care, even though the two services are inextricably linked. Social care reform needs to be system-wide, long term and joined up around the needs of those being cared for, so that comprehensive and integrated care at home and in the community can be properly provided. But when will we receive a plan to do this? After all, as the noble Lord, Lord Young, remarked, does social care not come into the Government’s category of necessary long-term decisions?

In all this, the role of paid and unpaid carers is crucial, as is that of charities, as highlighted by my noble friend Lord Touhig. So where was the long-term social care workforce plan to overcome the severe staff shortages in the care sector? I venture to suggest that Labour’s new deal for care workers could be an essential first step in tackling the staffing crisis. It will be the first ever fair pay agreement collectively negotiated across the sector.

The gracious Speech could have addressed retention and the issues that contribute to high attrition rates across the NHS workforce, but it did not. I am concerned that this is at a time when a recent NHS survey reports that nearly one-third of staff often think about leaving their job, while the workforce plan also fails to address the maintenance and building backlogs that bedevil the ability to have enough physical capacity with which to deliver services. I note that my noble friends Lady Blower and Lady Wilcox made similar comments about inadequate retention and recruitment plans for teachers, another significant staffing group who are crucial to success.

The Government have promised to deliver their plan to cut waiting lists. But where is the actual plan? We on these Benches stand ready with a commitment to provide 2 million more appointments by paying staff extra to work evenings and weekends, which will be paid for by abolishing the non-dom tax status. Is that something the Government would consider doing? If so, we would be pleased to have provided the inspiration.

Instead, what we have is regressive legislation in the form of the Strikes (Minimum Services Levels) Act. It seems that the Government’s answer to the shortage of doctors and nurses is to sack NHS staff. They say they want minimum service levels on strike days, but what is their plan to provide minimum service levels on non-strike days? Had Ministers not spent months refusing to negotiate with NHS staff, there might not have been more than 1 million operations and appointments cancelled due to strike action this year, and NHS England would not be asking for £1 billion extra from the Treasury. We all want minimum standards of service and staffing, but it is this Government who consistently fail to provide them.

It is significant that so many noble Lords, including the noble Baroness, Lady Hollins, have criticised the absence of a Bill to provide the desperately needed reform of the outdated, untrusted and discriminatory 1983 Mental Health Act. As the noble Baroness, Lady Watkins, so aptly observed, this Bill has been on a wating list for 40 years. Since the Government published, in 2018, the findings of their own commissioned review, more than 200,000 people have been detained under the Act—many inappropriately, including those with autism and learning difficulties—and more than 20,000 people have been subjected to a community treatment order.

A White Paper responding to the review was published in 2021. Last year a draft Bill was published, and pre-legislative scrutiny got under way. A huge amount of valuable and informed cross-party work has been undertaken, with wide consultation among stakeholders. The failure to bring forward those long overdue reforms, including changes to the criteria for detaining patients, is letting down our most vulnerable. This cannot continue.

Health and social care is not the only area of omission. In the gracious Speech there is no legislation to build the homes we need or the education system that people of all ages need, or to tackle the increasing level of persistent absenteeism in schools—which was noted by the noble Baronesses, Lady Gohir and Lady Bull, and many other noble Lords.

There were two general themes underlying the debate today, about which many noble Lords have spoken, and on which I shall conclude my remarks. First, inequalities run ever deeper across our society, whether we look at maternity care, life expectancy, the quality of health throughout life, or detention on mental health grounds. As the noble Lord, Lord Best, said, there are also inequalities in housing availability, affordability and quality. We are seeing an increasing divide on the basis of social determinants, of which the right reverend Prelate the Bishop of London spoke, whether they be because of race or colour, or where people live, their income, their education and/or their start in life.

Secondly, as my noble friend Lady Jay said, one Bill a strategy does not make. The gracious Speech provides a disconnected programme, with no strategy to address the deep-rooted fractures in people’s lives to which my noble friend Lord Howarth referred.

I listened closely to the right reverend Prelate the Bishop of Gloucester, who spoke of the very real impact of disjointed government on victims, families and communities. What a missed opportunity this gracious Speech has been. I can only hope that the next gracious Speech will be different and will grasp every opportunity for change.

Ultra-processed Food

Baroness Merron Excerpts

Thursday 26th October 2023 Lords Chamber

[Lord Markham (Con)]

That is absolutely right. We should always base this on the science. I thank my noble friend for that comment.

[Baroness Merron (Lab)]

My Lords, nearly half of baby snacks and up to three-quarters of baby biscuits and rusks are categorised as ultra-processed. Many of them are high in fat, sugar and salt and if overconsumed, reports suggest, can lead to weight gain, unhealthy eating habits and a wider negative impact on development. Have the Government made any consideration of measures to help parents to be more informed of these risks? What discussions have taken place with industry to address information and formulation?

[Lord Markham (Con)]

To take the second question first, the industry has worked with a lot of comments on reformulation across the board—for younger children and older ones. Noble Lords will remember me saying that foods such as Mars, Galaxy, Bounty and Snickers bars have all been reformulated, as have Mr Kipling’s “exceedingly good” cakes. Clearly, we need to look across the board at it all. I know that the industry is working in the area of young people. I am happy to follow that up in writing with the precise details.