Trade Bill

Lord Freyberg Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 2nd February 2021 Lords Chamber

[Lord Freyberg (CB)]

My Lords, as I rise to speak to Motion D1 in the name of the noble Baroness, Lady Thornton, the House will recall I have spoken at length in recent weeks about my support for Amendment 4 and, in particular, the protections it would afford publicly funded data processing services and IT systems in connection with the provision of health and care.

The Minister has mentioned in his replies, and again tonight, the importance that the Government place upon data protection for individuals, although I note that he was more sparing in his responses to my other substantive questions on Report. By contrast, the Minister of State for Trade Policy in the other place, Greg Hands, failed to provide even vague reassurances about the Government’s ongoing commitment to UK data protection provisions.

However, notably, the former chair of the Digital, Culture, Media and Sports Committee, Damian Collins, voiced reservations about the potential for digital and data rights to be “traded away.” In fact, he asked the Minister to consider a formal role for the Information Commissioner to advise Parliament on future trade agreements and, in particular, to make sure that they comply with our data protection laws. I put it on record that I share his concerns and echo his call for the Government to provide additional assurances at this critical juncture. I also underline what to many of us is already self-evident—that the near future of our NHS will be data-driven and increasingly digital, both in inclination and composition.

Other noble Lords have rightly drawn attention to concerns about the potential for overseas companies to access contracts for the provision of traditional health and care services in the UK via international agreements. However, I emphasise the added protections contained in Amendment 4 which would, among other things: safeguard state control of, and involvement in, policy-making and the use of publicly funded health and care data; prevent the outsourcing of digital infrastructure that is already critical to the nation’s health and wealth; and harness the value of data controlled by our NHS in future to ensure that the public can be satisfied that the value will be safeguarded and, where appropriate, ringfenced and reinvested in the UK’s health and care system.

It is incumbent upon all of us to serve as enlightened and forward-thinking custodians of the precious resource our health and care data represents in the context of the ongoing public health emergency, as well as with an eye to the health and care needs of future generations. As such, I urge the Minister to reconsider his position. If he is not willing to support this amendment, how do the Government propose to protect data as outlined in the amendment? I would be grateful if the Minister could set that out this evening.

[Baroness Bakewell of Hardington Mandeville (LD) [V]]

My Lords, we have had a wide-ranging debate and covered some important topics. I welcome the Government’s amendment made in the other place, but it does not go far enough. I fully support the remarks made by the noble Baroness, Lady Thornton, on the important issue of the public ownership of the NHS contained in Motion D1, and agree with the comments from the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, on taking back control and ensuring the safety of the NHS.

I wish to speak chiefly in support of Motion E1 on international trade agreements, moved by the noble Lord, Lord Grantchester. This is an important amendment which was heavily supported on all sides of the House during the passage of the Agriculture Act. Others have referred to this. The standards of protection of human, animal and plant life and health should be at the top of everyone’s agenda. Following the Brexit agreement, there are significant numbers of statutory instruments being debated around animal and plant life and health. This is to ensure the welfare of animals, environmental protection and the prevention of importing into Great Britain animal and plant diseases.

However, all those safeguards are in secondary legislation and are therefore open to change and amendment by succeeding Governments or due to changes in government priorities. In order to be certain that standards affected by international trade agreements are safeguarded not only for our generation but for future generations, it is necessary for that to be stated on the face of the Bill and not tucked away in a plethora of statutory instruments which might contradict each other.

As everyone who took part in the Agriculture Bill and those taking part in the Trade Bill know by now, the UK has some of the highest animal welfare standards in the world. We are rightly proud of our plant welfare regulations that help to protect against the importation of foreign pests and diseases, which can decimate our native trees and plants. However, many diseases and pests are airborne. We are an island country but are geographically very close to our neighbours in Europe, so, despite rigorous import controls, we are vulnerable to airborne diseases.

The importation of high-quality food is at the top of the agenda; I am grateful to the Minister for his reassurance with regard to the Food Standards Agency, but that is not the whole picture. We have confidence in the FSA, but it is the monitoring of trade agreements that is of concern. Trade agreements need to be strict and monitored closely so that countries with endemic animal and plant diseases which are not currently prevalent here take steps to ensure that their outbreaks are kept under control. This will not be a failsafe mechanism for protecting GB from those diseases, but it will make a significant difference.

Polling shows that there is unequivocal public support for maintaining our current food standards relating to a few issues, including pesticides, antibiotics and other products. This approach must also be applied to other areas to safeguard against downward pressure on environmental standards in the UK—for example, those relating to chemicals and manufacturing.

The noble Lord, Lord Grantchester, spoke eloquently to his amendment. It covers some vital issues, including standards on employment and labour. If he moves his Motion to a vote, we will support him. New subsection (2)(e) proposed in his amendment provides for

“online protections for children and vulnerable users.”

That echoes the theme of the amendment in the name of the noble Baroness, Lady Kidron. There are many reasons why protection of children from online harms should be on the face of the Bill. We heard from the noble Baroness about the distressing case in Canada whose Government are not able to take action against a company called Pornhub due to the trade agreement between Canada, the US and Mexico. This has slipped in unnoticed and, as a result, the Canadian Government are powerless to protect children and young people. We should do everything possible to ensure that that does not happen here.

The UK has a proud record of protecting children and young people, but the rapid advance in technology and digital communications means that we must be vigilant on all fronts, including in the Trade Bill. The noble Baroness, Lady Kennedy of The Shaws, gave stark warnings about trade deals that are not rigorously drafted. The noble Baroness, Lady Kidron, did not indicate that she would press her amendment to a Division. However, should she do so, we on our Benches will be happy to support her.

Lastly, the noble Baroness, Lady Boycott, spoke knowledgeably, as always, about public health and health inequalities being included in the remit of the Trade and Agriculture Commission and in the role of the FSA. Given the current state of public health caused by Covid and the health inequalities that this has shown up in very sharp relief, it would seem important for there to be someone sitting on the TAC who has expertise in, or some knowledge of, public health and health inequalities. As the noble Baroness, Lady Boycott, said, sections of our communities are currently suffering considerable health inequalities.

No doubt the Minister will say that health inequalities are covered elsewhere and that this is not the place for them. However, confidence in the Government’s ability to ensure that health inequalities are covered elsewhere is currently somewhat thin. After severe cuts to public health budgets in previous years, we are now seeing just how dangerous those cuts were to the most vulnerable residents in the country and just who is paying the price for those inequalities. I urge the Government to seriously consider agreeing to the amendment of the noble Baroness, Lady Boycott. I look forward to the Minister’s response to this debate and hope that he has some concessions to offer us.

Trade Bill

Lord Freyberg Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

[Baroness Thornton (Lab) [V]]

My Lords, this proposed new clause aims to protect the NHS health, care or publicly funded data processing services and IT systems in connection with the provision of health and care in parts of the UK from any form of control from outside the UK through trade agreements. We know that Parliament does not yet have adequate powers to guide and scrutinise trade negotiations, and the current process provides no legal mechanism to directly influence or permanently block trade agreements—hence the amendments which we have discussed in Committee and earlier today. I thank the noble Lords, Lord Patel and Lord Fox, for adding their names to this amendment, and particularly the noble Lord, Lord Freyberg, for merging his important amendment about NHS data with the one about the NHS and public health. These are national assets which must not be put in jeopardy or squandered in whatever the future holds for UK trade with the world.

I will be very brief, because it is late—it is shocking that we are having to discuss something so important so late. We know that this Bill could mean that the UK enters into trade agreements that have a significant impact on public health and the domestic healthcare sector without Parliament having any meaningful role in their scrutiny. In this time of great uncertainty—do we have a deal or not?—the Trade Bill is currently the only legislative vehicle for Parliament’s oversight of trade negotiations. As a result, additional scrutiny mechanisms are vital to protect the NHS and public health as the UK begins to negotiate independent free trade agreements in earnest. These trade agreements could enhance health, if controls are put in place to ensure economic gain is not given priority over health, but they also have the potential to negatively impact upon health services. While the Government have repeatedly pledged that the NHS is not on the table in trade negotiations, we know that there have been detailed conversations between UK and US negotiators, revealing that health services have been discussed and that the US is probing the UK’s health insurance system and has made clear its desire for the UK to change its drug pricing mechanism.

I invite the Minister to accept this amendment so that the Government can proceed with their trade negotiations confident that Parliament has expressed its clear intention. I will not go through the detailed parts of this clause, because they are rather well drafted and completely clear in what they aim to do. There must be clear provisions on digital trade, where this affects health services. There must be clear exemptions for all health-related technology, as well as more transparency about digital provisions in trade deals. The noble Lords, Lord Freyberg and Lord Clement-Jones, will more than adequately explain those data issues, but we must remind ourselves that the NHS has longitudinal data the like of which exists in no other health system in the world. It is a huge asset from which the NHS and the British taxpayer should benefit. Does the Minister agree? I beg to move.

[Lord Freyberg (CB)]

My Lords, I am delighted to follow the noble Baroness, Lady Thornton, and congratulate her on her excellent and persuasive speech. I am pleased to contribute to consideration on Report of the Trade Bill and to speak to the new Amendment 11.

There is some question as to the status of new and enhanced digital trade provisions in replacement deals, such as the CEPA signed by the UK and Japan in September, and those promised next year in relation to the UK’s CETA with Canada, which are said to expand pre-existing agreements. These provisions have implications for health and care in the UK and warrant further discussion, despite the advice note issued by the Minister’s department on Friday—hence my decision to press the issues which I raised in Committee.

Amendment 11 would safeguard state control of policy-making and the use of publicly funded health and care data. This capability is of vital importance in the context of the pandemic, but it should be guaranteed in perpetuity, since it underpins the efficient and effective operation of publicly funded health and care services in the UK, as well as those data-driven health services managed at present by, for example, Public Health England and the Joint Biosecurity Centre. It also amounts to a significant national asset or resource with the potential to function as a dynamo in relation to research, innovation and continued growth of the UK’s life sciences, health and care tech sectors. The Trade Bill should recognise this and incorporate explicit provisions preventing the outsourcing of digital infrastructure that is critical to the nation’s health and wealth and, by implication, the loss of skilled personnel working in data analytics to support core health and care functions alongside research and development activity.

Agreement to Amendment 11 would also safeguard the state’s ability to regulate and maintain the level of protection afforded to health and care data relating to UK citizens. The Government seek to champion the free flow of data; this is writ large in the CEPA as well as in their recently issued advice notes on the subject. I am also mindful that the CEPA does not in itself change UK data protection laws. However, the Government should consider how the Trade Bill and enhanced provisions in rollover trade agreements could contribute to, or detract from, the public’s perception of their trustworthiness and accountability in relation to health and care data usage by third parties. After all, informed consent is the foundation on which UK GDPR is based.

The Government have stated that the CEPA deal

“removes unjustified barriers to data flows to ensure UK companies can access the Japanese market and provide digital services. It does this by limiting the ability for governments to put in place unjustified rules that prevent data from flowing and create barriers to trade.”

Does the Minister consider restrictions on the free flow of, for example, genomic and biometric data about citizens justifiable or not? Would he not, for example, consider it helpful to commit to data localisation or minimum cybersecurity standards to safeguard certain types of sensitive personal data? Having entered into the CEPA with Japan, are the Government now unable to insist on such rules? In putting my name to this amendment, I am concerned to ensure that the Government have not already tied the hands of policymakers and regulators, including the Information Commissioner.

Agreement to subsection (3)(c) in the proposed new clause inserted by Amendment 11 would prevent the introduction of any ISDS clause regarding data access and processing in relation to health data to a rollover or enhanced trade agreement. The Government continue to invest significant funds in research and development and are committed to leveraging private investment to propel the UK’s R&D effort. I feel sure—in fact, I will wager—that securing foreign direct investment in health and care data will be a feature of their trade negotiation strategy. However, in the interests of guaranteeing value for taxpayers’ money, the Government should not find themselves in a position where they are at risk of legal action from their trading partners or multinationals if, for example, they want to offer discounted access to health and care data assets for UK SMEs to stimulate homegrown economic development or invest to create employment opportunities in deprived communities in relation to the clean-up or curation of health and care data.

The Minister remarked in an earlier reply to me that ISDS provisions do not feature in the rollover trade agreements with which this Bill is primarily concerned. I also think I am right in saying that, rather than opting for ISDS in negotiating the CEPA, the Government agreed with Japan that the agreement would be subject to the World Trade Organization’s Dispute Settlement Body. That is not to say that other rollover agreements still to be finalised will not incorporate reference to ISDS, and nor do I profess a preference for reliance on the WTO’s dispute settlement body vis-à-vis claims that might arise in relation to government decisions on health and care data, since the UK will pose a less significant risk to those claimants who may be backed by big tech once separated from the European Union in earnest. I therefore stand by the amendment, which would prevent such claims arising in the first place.

Agreement to subsection (3)(f) of Amendment 11 reads across to a topic that I have spoken about on many occasions in this place: namely, the value of healthcare data. There is widespread recognition that the NHS uniquely controls nationwide longitudinal healthcare data, which has the potential to generate clinical, social and economic development as well as commercial value. The Government should take steps to protect and harness the value of that data and, in the context of the Trade Bill, ensure that the public can be satisfied that that value will be safeguarded and, where appropriate, ring-fenced and reinvested in the UK’s health and care system. The Government have stated that the UK-Japan deal includes agreement to encourage

“the release of anonymised government datasets where appropriate”

because public access to government datasets creates opportunities for innovative British businesses. Once again, the trade deal cuts both ways; I do not believe that the general public support a “great health data giveaway” of benefit to companies headquartered and paying taxes overseas.

Finally, conscious of time, I encourage the Minister to reflect upon my contribution to the discussion of the Medicines and Medical Devices Bill in Committee, and the helpful response of the noble Baroness, Lady Penn, which confirmed that the Government mean to undertake a review of pertinent regulations over the coming year, including the definition of a medical device and the regulation of algorithms and artificial intelligence in pertinent tools and innovations. I am concerned that the effect of provisions in some trade agreements could be to reduce access to the algorithms that underpin them.

None can doubt the need to prioritise the safety of the public as new treatments and technologies are developed in the face of the Covid-19 pandemic and traded under both existing and new agreements that the Government might enter into with other countries. Yet, according to the Government’s advice note published on 4 November, the CEPA entered into by the UK and Japan will prevent the forced transfer of algorithms. The Trade Bill should contain up-to-date provisions to guarantee patient safety against this backdrop because it is unclear whether Article 8.3 of the CEPA—which provides a general exemption for measures deemed necessary to protect human health—would override provisions concerning the forced transfer of algorithms. Agreement to subsection (4) of Amendment 11 would have that effect.

I am passionate about harnessing the value of health and care data that is generated by, with and about UK citizens. The Government should, however, take note of those protections to which I have put my name in supporting Amendment 11; these are designed to maintain public confidence in our brave, new, data-driven world.

[Baroness Sheehan (LD) [V]]

My Lords, Amendment 43 in my name provides for safeguards to trade agreements to ensure affordable access to medicines for all. I thank my noble friend Lord Purvis of Tweed and the noble Lord, Lord Alton, for adding their names. I express my support for Amendment 11 in the names of the noble Baroness, Lady Thornton, the noble Lords, Lord Freyberg and Lord Patel, and my noble friend Lord Fox. It dovetails nicely with my Amendment 43 in seeking to protect the NHS and connected services from control through free trade agreements; Amendment 43 seeks to affirm fair access to affordable medicines for international agreements to which the UK is already a party.

The monopoly system created by the pharmaceutical business model is entrenched globally through the WTO’s 1995 TRIPS agreement—the Agreement on Trade-Related Aspects of International Property Rights. Included within it are provisions to safeguard public health. However, concerns about affordable medicines in developing countries, particularly access to antiretroviral drugs in the face of the HIV/AIDS epidemic, led to the Doha declaration in 2001. These identified options open for Governments to address public health needs, which are known as flexibilities. The importance of such flexibilities was highlighted by their inclusion in the UN’s sustainable development goals.

However, despite these safeguards, the misuse and abuse of these monopoly rights continue and are taking precedence over human rights in all countries of the world, not just developing ones. The NHS’s spiralling drugs bill led even the Health Secretary, Matt Hancock, to protest that pharmaceutical companies are “ripping off taxpayers”. I have no objection to profit-making by companies, but I object vehemently to people suffering and dying needlessly under the NHS because of quite obscene profit-taking by pharmaceutical companies, as happened with Vertex’s cystic fibrosis drug Orkambi. In South Africa, private health companies are charging $39,000—an obscene amount—for Trastuzumab, a WHO essential drug to treat breast cancer. This is a human rights issue.

Trade Bill

Lord Freyberg Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

Moved by

[Lord Freyberg]

71: After Clause 2, insert the following new Clause—
“Trade agreements involving health and care technology
(1) Regulations under section 2(1) may make provision for the purpose of implementing an international trade agreement only if the condition in subsection (2) is met in relation to the agreement.(2) The condition in this subsection is that any agreement which relates to trade in medical algorithms, technology or devices must explicitly allow, in the case of any traded algorithm or data-driven technology which could be deployed as a medical device, for the methodology for processing sensitive data to be independently audited or scrutinised for potential harm by an appropriate regulatory body in the United Kingdom.”Member’s explanatory statement
This new Clause would ensure that traded data-driven medical devices which recommend or inform treatment and care would not be beyond scrutiny by an appropriate body.

[Lord Freyberg (CB)]

My Lords, I thank the noble Lord, Lord Grimstone, for the opportunity to speak today about trade agreements involving healthcare data and technology and, in moving Amendment 71, I shall speak also to Amendment 72 in this group.

Noble Lords will be aware that I am a long-standing advocate for the use of patient data to provide better healthcare, and some will know that my motivation is personal to the extent that the treatment of my sister, before she passed away, very sadly, was impacted by the poor flow of healthcare information. Therefore, noble Lords can rest assured that in tabling these two amendments I do not seek to restrict the free flow of data or to introduce obstacles to vital research and innovation. I do, however, wish to guarantee patient safety in our increasingly data-driven health service and, allied to that, continued government control of publicly funded healthcare data as we move beyond the transition period post Brexit to forge new trading relationships.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I have received no requests to speak after the Minister so I call the noble Lord, Lord Freyberg.

[Lord Freyberg (CB)]

My Lords, I thank the Minister for his helpful reply. I will take him up on his offer to facilitate further discussions on the Medicines and Medical Devices Bill.

I take the point that the Government prize the privacy, safety and security of citizens above all else, including their data rights, and have not and would never relinquish control of policy-making or regulation in respect of the same. However, the Minister will be aware that the pandemic has given rise to significant emergency powers on healthcare data, which the Secretary of State for Health and Social Care has made plain are required to combat the virus.

He also indicated that the Government mean to retain some of those powers in future, which implies additional responsibilities to steward healthcare data in an ethical manner resting with central government for the foreseeable future. Without Amendment 72, I do not see how the Minister could commit to doing so, since it is clearly necessary for the Government to retain the ability to assess and audit any and every medical algorithm, technology, device and use of data for the delivery of safe, effective and lawful care to their citizens, free from commercial, state or any other limitations on the UK’s sovereign control.

The Minister also mentioned the continuity legislation; as such, provisions to protect the NHS are not required, because existing trade deals already provide such protections. Where such provisions might exist for health and care services, they are distinct from data-driven products in the form of medical devices—which are the subject of a dedicated Bill that is also making its way through Parliament, as the Minister just said—and data-processing services and IT systems for which the NHS has overarching responsibility. The former are widely anticipated to grow in number and novelty as a direct result of the pandemic, and the primacy of patient safety should therefore be reflected in the Bill. The latter are in the news daily—not always for the best reasons. The reliance of the UK economy on them is now such that I am sure the Minister would agree that it is imperative that Her Majesty’s Government retain control of and sovereignty over them.

I shall take back what the Minister has said and reflect on it further. In the meantime, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Trade Bill

Lord Freyberg Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 8th September 2020 Lords Chamber

[Lord Freyberg (CB) [V]]

My Lords, I add my congratulations to the two maiden speakers. I have spoken before about the need to better harness the value of healthcare data in the UK. Today I want to draw attention to the need for clear provisions on data trade in the Bill, where they could usefully assuage concerns about privacy and patient safety, as well as help guarantee that economic benefits flow from the next generation of data-driven health services.

The Government have indicated that the Bill will enable the UK to take back control, so its provisions should ensure that we retain the sovereignty that implies. Others have called for a specific, if broad-ranging, carve-out for the NHS with this in mind. I ask the Minister whether he is minded at least to consider introducing a carve-out for publicly funded healthcare data processing services in the United Kingdom. This could be achieved here by guaranteeing the application of a pertinent national treatment limitation clause to new trade agreements and is, in some senses, consistent with the Government’s existing policy concerning the offshoring of such sensitive personal data. In the light of the judgment of the European Court of Justice in the Schrems II case, as discussed by the noble Lord, Lord Clement-Jones, it would also indicate that the Minister takes privacy and the concerns expressed by the public in this regard seriously.

The Government must negotiate new trade agreements with countries which subscribe to an increasingly protectionist approach to intellectual property, and I am concerned that the effect of provisions in some agreements could be to reduce access to the algorithms that underpin them—in particular, where developed countries seek restrictions on forced disclosure of digital technology, treating source code and algorithms as trade secrets. Can the Minister assure noble Lords that it is his clear intention to safeguard us from all mutant and potentially lethal algorithms in healthcare when the Government negotiate digital elements of new trade agreements?

Finally, does the Minister agree that it is of the utmost importance that the UK Government do not find themselves in the invidious position of being sued for taking decisions about the processing of publicly funded healthcare data in the future, not least given the scope for them to contribute to economic growth through the Government’s life sciences industrial strategy? If so, will he consider amending the Bill to ensure that no investor-state dispute settlement clauses may be introduced to new trade agreements where they would impact policy-making, regulation or the provision of services underpinned by publicly funded healthcare data in the United Kingdom?

Artificial Intelligence (Select Committee Report)

Lord Freyberg Excerpts

Monday 19th November 2018 Lords Chamber

[Lord Freyberg (CB)]

My Lords, I, too, congratulate the noble Lord, Lord Clement-Jones, on securing today’s debate and thank him for his work as Chairman of the Select Committee on Artificial Intelligence. The committee’s report makes an important contribution to the wider debate about how the United Kingdom can position itself to be a world leader. Along with the Government’s response, it raises a number of important questions that I want to explore today.

Like the noble Lords, Lord Kakkar and Lord St John of Bletso, and others, I want to focus on our handling of the data that will drive new advances in artificial intelligence and, related to that, its potential to deliver better healthcare outcomes. I am pleased that the committee’s report looks in depth at healthcare and at how the Government might support the development of leading-edge policies to complement advances in AI. Several recommendations caught my eye, including those concerned with ensuring that we maintain public trust in the safe and secure use of personal data, and others which explore how we might harness the value of healthcare data.

The Government’s response gives the House a clear indication of their thinking and makes it plain that they will continue to evolve a regulatory framework that protects patients’ data. They also confirm that work is under way better to understand how to obtain value, in the broadest possible sense of the term, from granting access to patient data for research and innovation.

I presume that an important facet of the latter is the Government’s recently published code of conduct for data-driven health and care technology, which includes mention of the commercial approaches that individual NHS trusts might adopt in discussion with third parties making use of big data to advance machine learning and evolve AI. At present, it is a voluntary code, because I understand that Ministers want to encourage organisations to sign up and feed back on the initial draft.

However, I hope that the Government will think seriously about making the next version mandatory so that the provisions for safeguarding patient data, while extracting optimum value, are placed on a more robust footing in the near future, in particular given last week’s news, mentioned by the noble Lord, Lord Clement-Jones, and others, concerning the absorption of DeepMind’s Streams team into Google.

As I have said previously in the House, realising the potential value of healthcare data represents a time-limited opportunity in a globally competitive market. There is currently no clearly agreed strategy which sets out how the NHS and UK plc intend to benefit from providing access to and usage of the broad-ranging data assets that the NHS controls. I was pleased that the Treasury published Getting Smart about Intellectual Property and Other Intangibles in the Public Sector, which was integral to the Budget.

For those noble Lords who are unfamiliar with it, the document recommends the establishment of a central repository detailing government knowledge asset holdings and their value; guidance to design and implement best-practice protocols; protection and commercialisation of public sector knowledge assets; and registering intellectual property assets with the most commercial potential so that their value to the United Kingdom is maximised. These recommended next steps are to be welcomed, and I know that my noble friend Lord Mitchell is in agreement since they echo the thrust of the amendments that he introduced during the passage of the Data Protection Bill earlier this year. However, I would like to understand who will be leading this work and how they propose to interface with the Department for Business, Energy and Industrial Strategy as well as the Department for Health and Social Care. I also note that the recommended next steps are not currently attached to a clearly defined timetable against which progress might be measured.

Once again, we are left wondering—to quote the subtitle of the report of the noble Lord, Lord Patel, on the life science industrial strategy—who is driving the bus and whether it will be on time. Might the Minister clarify as much in his response? If government policy and guidance are misaligned and do not act as an appropriate check before the proverbial horse bolts, there is a risk that public trust will be eroded, which could in turn act as a brake on the innovation on which I am sure many of us agree improvements to patient outcomes now hinge.

Allied to this, the committee’s report recommends that the Information Commissioner’s Office works closely with the new Centre for Data Ethics and Innovation on the establishment of “data trusts”. This is also to be welcomed. However, if data trusts are to work, it is appropriate that data subjects have a clearly defined stake and say in such initiatives before the outset. Of course, further discussion is needed before we alight on the right balance between individual involvement in, control of and, potentially, reward from healthcare data sharing versus what could otherwise be leveraged by the state for public benefit were healthcare data, in particular, to be approached as a “sovereign asset”. In the interim, can the Minister confirm how the Government intend to facilitate this?

As was said by the noble Baroness, Lady Kidron, and others, the big technology giants possess a unique concentration of power. The Government will need to demonstrate leadership and take urgent action to protect patient data while ensuring that a prime opportunity to enable leading-edge innovation in health and care is not missed, as happened in the past with care.data. There is currently no regulation or strong enough framework to manage what seems to be a wild west-style data gold rush on the part of the private sector. While the hiatus continues, commercial organisations are taking advantage.

If patients are to benefit from the introduction of artificial intelligence, Ministers must be proactive. A great deal has been said about the need for ethics frameworks today, which I agree must be developed in parallel. However, to quote Professor Luciano Floridi, professor of philosophy and ethics of information and director of the Digital Ethics Lab at Oxford University:

“We’re told we can’t regulate technology because regulation can’t keep up, while at the same time, we shouldn’t regulate because it will destroy its innovative potential—logically, it can’t be both.”


I urge the Government to make it plain who will be accountable to the public on this subject and by when they plan to introduce suitably robust provisions.

Life Sciences Industrial Strategy (Science and Technology Committee Report)

Lord Freyberg Excerpts

Tuesday 23rd October 2018 Lords Chamber

[Lord Freyberg (CB)]

My Lords, I too would like to thank the committee for so thoroughly examining this vital part of our economy and national purpose. This is not simply another industry sector. As the noble Lord, Lord Bilimoria, said, the essence of what it brings is clear in its name: life. It is all the more important, therefore, that we as a nation have a clear, simple and credible strategic objective, backed up by the right ways and means to achieve it for our patients as well as our pocketbooks. We need to do this in ways that play to our natural strengths: our science, our NHS and our willingness to work together in times of need. We should not try to become like the Americans or to build companies, however ambitiously large, in the shape of the biotechs of the past. That would fail, not because we do not have enough ambition, but because to succeed and be credible we must be organised and authentic.

We have a strong legacy of leadership in life sciences. Twenty-five of the bestselling drugs ever were discovered here, but most were commercialised by non-UK companies. To reset this imbalance, we need to give industrial help across the board—to UK innovators and progressive charities to translate great science and data into world-class assets. We need to manufacture them here, show their value through early-access patient use in the NHS and then supply the larger firms with healthcare assets that will be sold abroad, not disappear abroad. We must capture the value of the assets we have here, anchor IP here in the UK and return the high value of health data here, to our NHS. I agree entirely with others that we must have the consent of patients in place for this to work.

UK plc is already in competition for this new life sciences industry with other nations richer and more comfortable with risk than we are. The future health service is about innovation with business to better enable prevention and early diagnosis, so we need to realise this now and act now. To enable pharma and tech companies to thrive here, UK plc now needs to act like a life sciences plc would—joined up, commercial and clearly led.

The strategy and the excellent report cover a broad field, but I shall focus on two areas covered in the strategy: first, harnessing the national infrastructure, which gives us our global offering; and secondly, value capture, which is our reward. We have invested billions in public sector infrastructure that can help industry, large and small. We have basic research and specialised equipment held in universities. We have hundreds of biobanks and thousands of opinion leaders in NHS networks wanting to test new innovations in clinical practice. However, we have allowed much of this to be fragmented, internally competitive and tough to navigate from the inside, let alone for industry, as the noble Baroness, Lady Young, and the noble Lord, Lord Hunt, made clear so forcefully. We must create a national industrialised product that our innovators can use and promote globally as a simple, credible, national offering in life sciences. The report says that we need a bus driver, but first we need a navigable bus route, with systems working together as a national unit, each part contributing what it is best at, rather than trying to compete with each other for the same bio-dollar.

There are positives that we must celebrate. We are recruiting patients into clinical trials at unprecedented speeds, and providing ever more research-ready, real-world data for virtual clinical trials to be performed. The strategy created programmes that target translation, prevention and early diagnosis. It also laid the foundations for HDR UK to build industry-available data lakes and included the health catapults as a nurturing ground for UK IP and SMEs. It is therefore pleasing to see an additional five years’ funding announced today for the Medicines Discovery Catapult.

Moving on to value capture, we cannot invest this strategy’s target of 2.4% of our GDP in R&D by 2027 without capturing the value of our health data and IP. No life sciences plc would allow its IP and data to be so distributed and its commercialisation capabilities to be internally competitive and underfunded. The formation of UK Research and Innovation, which combines the research councils with Innovate UK, which grants money to UK innovators, means that we can address this now as part of the strategy.

However, the Commons Public Accounts Committee noted in April this year:

“Currently, ownership of intellectual property resides with the body that conducted the research rather than with the government funder”,


and that:

“Other countries, for example China, actively ensure that the products of university research are protected”.


Surely we should select the life sciences and health to pioneer a national industrial approach to the IP we generate. In a very British way, which the US could never do, UKRI could help form a central IP function to help universities funnel the best IP into national reserves. Imagine the stimulus Innovate UK could then provide to UK SMEs by giving non-cash grants in the form of access to our health data or our national IP. This would be transformational, pioneering and authentically British. Noble Lords will have heard me, the noble Lords, Lord Mitchell and Lord Scriven, and others in this House recommend that a central commercial support system be provided for the NHS and public sector health data controllers so that industry has one place to come, through which the UK can drive the best commercial deals for the nation.

Today, as the noble Lord, Lord Patel, and the noble Baroness, Lady Neville-Jones, have spoken powerfully about, many health-related data and IP deals are being done bilaterally between a large industry eager for data and grateful hospitals with limited commercial skills eager to get through the winter. These show me that optimising the value of data to the nation is an industrial skill that the public sector does not have at scale. The nation will benefit far more from access to commercial skills able to be deployed from a central independent resource, sponsored by government and available across the NHS and public research data sources, with strategic national goals, a range of business models to hand and a sovereign fund to receive a national portion of the proceeds. Let industry-savvy commercial skills deal properly with industry. The returns from these sovereign IP and data assets could deliver untold value to the nation to help deliver the 2.4% target.

To bring this together at a time of intense competition —and the need for speed—needs industrial leadership. I applaud the strategic work of Professor Sir John Bell, the ministerial oversight and drive of the noble Lords, Lord O’Shaughnessy and Lord Henley, and the Office for Life Sciences. However, no life sciences plc which believed in such an ambitious strategy would allow itself to be run without a CEO. Here I entirely agree with the noble Lord, Lord Desai: we need a full-time bus driver. Having no single national owner tells the industry that we have no one driver and allows the national infrastructure to remain fragmented. A full-time industry leader should be appointed immediately, with power over the appropriate budget to harness the national infrastructure, to co-ordinate a national product and to ensure that every step is being taken to capture national value.