Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021
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Lord Hunt of Kings Heath (Lab)
My Lords, I am very glad to follow the noble Lord and to speak to these regulations. They were laid two months ago and, once again, we are debating regulations that in a sense have been superseded by the various announcements made over the last 24 hours. I realise that this week we will probably debate at least two of the Statements, as well as looking forward to a lot of activity when we return.
I will focus on the instruments. At the time they were brought into force, the Government stated:
“The vaccine deployment programme continues successfully … Evidence shows vaccines are sufficiently effective in reducing hospitalisations and deaths in those vaccinated”
and that confidence in vaccine effectiveness against the delta variant has increased significantly. I hope the Minister can update us on that.
Can he confirm the number of adults who have not yet been vaccinated? I think there are figures in the winter plan that I have just seen. Does he agree that, while one should applaud all the efforts of those who have made the vaccination programme possible, it is still striking that so many adults have irresponsibly decided not to vaccinate? I know we will debate the issue of children aged 12 to 15 later this week, but I for one feel very uncomfortable that, even with just one jab, there will be a small risk to those taking it— particularly some boys—partly because of the selfishness of adults in not taking the vaccine. I personally think there are some ethical issues and am not surprised that the JCVI found this a very difficult decision. What else does the Minister think can be done to encourage adults to take up the vaccine?
Could the Minister also say a little about the unknown risks of vaccine effectiveness in high-prevalence environments where transmission pressures are high? I will also ask about the relationship between the booster jabs, which I think the Chief Medical Officer recently announced are to happen, and the flu vaccine programme. I understand that there is concern that immunity to the virus is low, leading to fear that flu, together with other winter viruses, could put the NHS under extreme pressure. Could he also comment on the likely effectiveness of the flu vaccine, which I gather is pretty low?
May I also ask about face coverings? These regulations remove the requirement for people to wear face coverings when using public transport services and in relevant indoor settings. The rationale for that was that the success of the vaccination programme meant we could move away from strict legal restrictions towards personal responsibility and informed judgment. Last week we debated this to an extent and the Minister pointed to data that his department had showing that this had not had much impact on people’s behaviour. From talking to noble Lords, I note that there is some surprise about this, because to the visible eye mask-wearing has dropped off considerably, particularly among men. I wonder about the extent to which this is being monitored and whether we need to step up some programmes about why it is still to be encouraged.
Finally, I will ask about local authority powers. These regulations enable local authorities to take action where an outbreak or risk of outbreak is linked to premises or an event, with local authorities retaining powers to respond to local serious and imminent public health threats. That is a very sensible provision. The Government then describe those regulations as continuing
“to act as an important public health tool for local authorities”.
Could he update me on the use of these regulations since they were passed?
Baroness Barker (LD)
My Lords, I am speaking in this debate because my noble friend Lady Brinton cannot be in her place to take part. We have the technology to enable remote participation in debates in the Moses Room, but the House authorities have not yet permitted that for contributions in Grand Committee, so virtual participation in these proceedings is unfortunately not possible, even though we have seen in this last week that the very few participants who need to take part remotely can be managed very effectively without recourse to extensive speakers’ lists.
It is also a loss to the Committee, because my noble friend Lady Brinton cannot take part for one very important reason, about which she has been quite public: she is clinically vulnerable, and one thing she cannot do is travel on public transport, which she cannot do because people are not wearing masks. Of all people, she should have been able to be here to make that point.
Yet again, these SIs were tabled very late. They came in just before the recess in late July, so yet again we are back to debating things that are long in the past. We have repeatedly asked the Government to respect the House and timetable SIs when they are not genuinely urgent. However, these are, as the noble Lord, Lord Hunt of Kings Heath, said, quite pertinent in view of the Statements being made this week.
This statutory instrument mostly deals with the revocation of statutory instruments on 21 July, which confirmed a number of the changes in the Prime Minister’s so-called freedom day. However, there is one extension, in Regulation 4, to the expiry date of the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations, which are now to end on 27 September. The Explanatory Memorandum says that this
“will ensure that local authorities retain powers to respond to local serious and imminent public health threats as a result of the spread of coronavirus. The No. 3 Regulations will continue to act as an important public health tool for local authorities in their local coronavirus outbreak management, compliance and enforcement activities. This is particularly important in light of the revocation of the other restrictions mentioned above”.
As we have said all the way through this pandemic, it is important that local authorities have the power to manage local outbreaks. Simply extending that power in law, but not making sure that they have the resources, will not work. As epidemiologists have said to us in terms, there will inevitably be points when it is important to close all the pubs in a certain area, simply because an outbreak has to be contained. While we welcome that, it behoves the Minister to say something about local authorities such as Croydon, which is insolvent, and how it will have the resources to manage this significant and enduring public health problem.
We regret the removal of face coverings on public transport and other crowded venues. I can say, as somebody who travels on the London Underground every working day, that fewer and fewer people are wearing masks and, as more and more people are on the Tube, I am certain we will see a spike in infections as a result. I also point out to noble Lords that the bad messaging on this does not help. There is genuine confusion. One of my colleagues was on a train to Scotland in the summer and, when it got to the border, there was an announcement that the law now required everybody on that train to wear a mask, and they did, as they should have done all the way.
It is now clear that the Government, and in particular the Prime Minister, have been so desperate to place emphasis on the vaccination programme as our primary defence that they have forgotten to look at the role of other mitigations against the disease. Although we support the passing of these regulations, we need to make the messaging clearer as a matter of urgency, so we can avoid the confusion that is now prevalent among people in England.
Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations 2021
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The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, over the past few months, the Government have made a concerted effort to bring forth a sense of normality across the country with the easing of restrictions, while maintaining caution with regard to this deadly virus, which clearly has a long way to run. These regulations are a key part of this dual-track effort, significantly reducing the burden of self-isolation while protecting society from the threat of contagion. The main focus of the regs is the isolation protocols, so I begin by reflecting on the crucial role that contact tracing and self-isolation play in fighting the virus.
Since it was established in May 2020, NHS Test and Trace has contacted more than 15 million people who have tested positive for Covid-19 or who have been in contact with a positive case. Tracing—the bedrock of any public health intervention—has improved substantially over the last several months. In October 2020, 60% of close contacts were being reached. In comparison, over the period from 26 August to 1 September, 87.3% of positive cases transferred to NHS Test and Trace were reached, as have 89.5% of their contacts where usable contact details were provided. That is a remarkable achievement.
The public realise the importance of isolation. July’s ONS statistics that show 79% of positive cases reported complying with the self-isolation guidance, alongside 89% of close contacts. That is a terrific response from the public and it has proven a vital weapon in our arsenal against the virus.
What is the impact of this massive financial and societal investment? A recent study from PHE, published today and called the Canna model after the idyllic Scottish western isle, which some noble Lords may have visited, shows that from August last year to this April, test, trace and self-isolation activity reduced the transmission of the virus by between 10% and 28%. The PHE research demonstrates that self-isolation helped to bring R below one at crucial times, reducing the duration and impact of lockdown. Over the full period of the study, the Canna model estimates that isolation due to test, trace and isolate policies prevented between 1.2 million and 2 million secondary cases. The NHS Test and Trace service has also enabled us to identify peaks and troughs in case rates, supporting decisions on when restrictions should be tightened or could be eased.
We recognise that none of this has been easy. The requirement to isolate creates enormous challenges for individuals and their families across the country. A study in March 2021 by the BMJ concluded that offering financial and practical support to individuals who needed to self-isolate would likely improve compliance. We support that view. Since September last year, we have provided councils with £280 million to issue support payments to those who may face financial hardships because of self-isolation. We have also made up to £100 million available between March and September this year for councils to offer practical and emotional support to some of the most vulnerable in our communities, covering over 200,000 people. It is right, though, that we sought to reduce the burden of self-isolation at the earliest opportunity.
The amendments to the self-isolation regulations we are debating balance these factors and provide a significant easing of burden from self-isolation requirements while maintaining vital measures to reduce the spread of the virus. These amendments came into effect on 16 August and allow those who are fully vaccinated to be exempt from self-isolation if they are the close contact of a positive case. Based on the data, we know that the vaccines reduce overall symptoms by between 80% and 90%, hospitalisations by between 90% and 95%, and deaths by around 95%. Therefore, we have adapted our approach to self-isolation to reflect this and ensure we balance the need to slow down the transmission of the disease with the need to get back to normal.
As well as fully vaccinated adults, several other groups have also been exempted from the requirement to self-isolate. The amendment provides an exemption to self-isolation for the close contacts who have taken or are taking part in an MHRA-approved trial for a Covid vaccine. This will ensure that they are not disadvantaged as a result of their personal sacrifice. We recognise also that some groups cannot be fully vaccinated on medical grounds. The amendment therefore includes an exemption for those close contacts who can evidence that they are unable to be vaccinated for medical reasons.
Finally, we have carefully considered the impact on those under the age of 18. There are unqualified harms to children’s educational, emotional and social outcomes as a consequence of self-isolation, as well as of the infection itself. The risk of hospitalisation and intensive care admission in children due to Covid is very low—approximately eight per 100,000 population aged under 18 are admitted to hospital. The incidence of mortality in children as a result of Covid is also extremely low. By balancing these factors, the SI provides an exemption for those close contacts under the age of 18 from self-isolation.
Those who are exempt will be advised to take a PCR test as soon as possible to check whether they have the virus. Though not required to self-isolate, they will be advised to consider other precautions, such as wearing a face covering in enclosed spaces, as well as limiting contact with others, particularly those who are clinically extremely vulnerable. However, it remains the case that if any of these groups develop symptoms they should self-isolate immediately and take a PCR test. Anyone, whether fully vaccinated or not, who goes on to test positive will remain under a legal duty to self-isolate.
Although I sympathise with the burden and the challenges that self-isolation creates, it will continue to play an indispensable role in containing the virus. The Secretary of State said more on this in his Statement earlier on the winter strategy for tackling the virus. While restrictions are easing, we must all continue to adhere to the self-isolation regulations and the guidance if we are to continue protecting our friends, families and communities. I commend these regulations to the Committee.
Lord Hunt of Kings Heath (Lab)
My Lords, I very much agree with what the Minister said about the importance of self-isolation. I note that emphasis is given in the winter plan to the importance of isolation in relation to breaking transmissions. The issue I have is that there is a proportion of the population who find self-isolation very difficult, and there are legitimate reasons for that. I have been studying TUC research, which shows that 24% of low-paid workers say they cannot afford to take time off for sickness, as opposed to 6% of high-paid workers. It reckons that only 35% of low-paid workers get full sick pay, as opposed to 80% of high-paid workers, defined as those earning more than £50,000 per annum. Statutory sick pay is only £96.35, less than any other OECD country. It is reckoned that 72% of low-paid workers cannot work from home, compared with 20% of high-paid workers.
Social Care: Family Carers
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Lord Bethell (Con)
My Lords, I do recognise the problem: 23% of carers—1.3 million—provide care for 50 hours or more a week. That is an absolutely astonishing figure, and I pay tribute to the contribution they make. The overall contribution by carers is around £56 billion a year. We cannot undervalue that contribution in either emotional, care or financial terms. The precise allocation of funding for this new financial package is not yet confirmed. When it is, I will make sure that the reasonable points the noble Baroness made are heard clearly in the department.
Lord Hunt of Kings Heath (Lab)
My Lords, in his first Answer, the Minister mentioned the Health and Care Bill and a more general duty to promote the interests of underpaid carers. Can he tell me why, at the same time, the Government are getting rid of the current provision in law of a carer’s right to an assessment when they take on a new caring role and the right to be consulted on whether they are willing and able to care? It is a crucial right of carers to have a proper assessment. Why is it being taken away?
Lord Bethell (Con)
My Lords, I completely agree that the carer’s assessment is the building block of our system. It is incredibly important; we do a lot of work to encourage more carers to get it. I do not know specifically about the point that the noble Lord makes on this additional component, but I would be glad to enter into correspondence with him on it. The broad principle of the importance of the carer’s assessment is one with which I wholeheartedly agree.
Covid-19 Update
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Lord Bethell (Con)
My noble friend has had an interest in this very important area for some time, and I completely applaud his diligence on it. It is an area that I share an absolute fascination with. We know so much about the vaccines but so little about the body’s immune system. It is incredibly frustrating but it is, I am afraid to say, just one aspect of this pandemic.
To answer the specific question of how many people have had the disease, it is difficult to be precise. Unfortunately, a lot of people have had the disease and never known that they had it. The fact that they have now gone on to have a vaccine means that it is extremely difficult for us to trace whether they have had the disease, because we do it mainly through the counting of antibodies. My noble friend can look on the ONS website, which I am sure he probably has, and he will see that the Venn diagram makes it almost impossible to figure out exactly how many people have had the disease. I can, through correspondence, share with him the various modelling that we have done, but there is not a definitive answer to that question.
I wish it were true that having had the disease and the vaccine together creates some kind of super-immunity, but I am afraid that there is a subset of people who have had both the vaccine and the disease who then go on to have the disease again. I have met a few of those people; they are extremely frustrated, as you can imagine. I am afraid that it does not bode well for thinking that the vaccine presents a concrete and immutable guard against the disease. I am afraid we will be living with the thought of boosters and improvements on the vaccine for some time to come. That is emerging as something we are working on. We are doing a tremendous amount of research on this. I had a meeting earlier with the antibody team, and I reassure my noble friend that we are doing everything we can to understand it better.
Lord Hunt of Kings Heath (Lab)
My Lords, I come back to the advice from the JCVI relating to 12 to 15 year-old children who do not suffer the underlying conditions it has set out. I worry about the implications of that being overruled through the process that the Ministers have set up, seeking the advice of the four Chief Medical Officers. The Minister will know that they concluded that some young people, although it would be extremely rare, could suffer from myocarditis with lifelong consequences.
I must ask about the ethical considerations here as to some young people who will be damaged as a result of that decision because 6 million adults are too stupid or ignorant to have the vaccination. That surely is where our focus should be. Could he say something about what the Government are doing? Does he agree that the integrity of the whole vaccine process, not just in relation to Covid, is at stake here? I think that the JCVI should be listened to.
Residential Social Care: Staff
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Lord Bethell (Con)
My Lords, I take on board the anecdote that the noble Baroness has just mentioned—I will look into that. I did not know about the arrangements at the Plymouth trust. On the whole, the arrangements for discharge have moved on a long way during the pandemic, and the financial arrangements for discharge have improved dramatically, so I am disturbed to hear the story that she tells, and I will definitely look into it.
Lord Hunt of Kings Heath (Lab)
My Lords, a disproportionate part of the proposed rise in national insurance will fall on low-paid workers, including those in the care sector. When this announcement is made, I hope that the Minister will come forward with plans to ensure that staff in the sector get a decent living wage.
Lord Bethell (Con)
My Lords, the noble Lord is right that taxes have to be spread across the whole country, but I remind him that the national living wage has risen by 2.2% in the last year, which benefits everyone across the population.
NHS Update
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Lord Bethell (Con) [V]
As my noble friend will know, I know Dr Jackson extremely well from the old days and heard her story with great regret. I took the story back to the department and played it into the system, as I told him I would do. A report is being drafted and I can reassure my noble friend that it is being taken seriously. The clarification of guidelines has been sent to all wards and there has been additional training for staff put in the position of needing to consider and engage with loved ones on this issue. However, may I push back against my noble friend? It is not right to try to generalise about staff on this point. I have the highest regard for NHS staff. In the very large majority of cases, they have worked extremely well in difficult circumstances in these situations and they are owed our respect for that.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, the Minister made that point very well. I declare an interest as a member of the board of the GMC because I want to ask him about workforce strategy. Clause 33 of the Health and Care Bill sets out a duty on the Secretary of State to publish
“at least once every five years … a report describing the system in place for assessing and meeting the workforce needs of the health service”.
The Minister will be aware that a number of NHS organisations say that this is not going far enough and that what is needed is the development of regular, public, annually updated long-term workforce projections so that the health service can meet the undoubted challenges that lie ahead. Is the Minister prepared to consider this?
Lord Bethell (Con) [V]
My Lords, I have heard the noble Lord on this point two or three times and he makes the argument extremely well and persuasively. As he knows, a huge budget of the NHS goes on the workforce; essentially, the NHS is a mobilised healthcare workforce. It is intrinsic to the success of the NHS that we manage our workforce correctly. There are substantial workforce transformation programmes in place at the moment, including the People Plan, and a huge recruitment drive is going on, including the creation of a much clearer employer brand, which has landed very well among the workforce generally. However, I take the noble Lord’s point. I am not the workforce Minister but I will take it back to my colleague Helen Whateley in the department and ask her for her consideration.
Covid-19
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Lord Bethell (Con) [V]
I completely agree that the post-lockdown wave is a well-known phenomenon, and we are living through the pain of it right now. I do not agree that test, trace and isolate is a shambles, and if the noble Baroness really still feels that way, I would be glad to arrange a briefing for her. As for what more we can do, we are investing heavily in the system and we will continue to improve things, as we have done already.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, on 28 June, the Secretary of State said that the lifting of restrictions in July would be “irreversible”, but the Minister will know that the SAGE meeting of 7 July said that all modelled scenarios show a period of extremely high prevalence of infection, lasting at least until the end of August. It identified four risks associated with high infection, including an increase in hospitalisations and deaths. If there is a risk of the NHS being overwhelmed, surely the Government will have to consider some more lockdown restrictions.
Lord Bethell (Con) [V]
My Lords, the noble Lord, who is so wise in these matters, has answered his own question. If necessary, we will do what it takes, but the aspiration is clear: we are seeking to get the vaccination level to such a high rate that R is below 1 and no further lockdowns are necessary. That is an honourable, reasonable and epidemiologically sound objective.
Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021
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Lord Hunt of Kings Heath (Lab)
My Lords, I will be supporting my noble friend’s amendment; I am very glad that she has put it before us. Like the noble Baroness, Lady Noakes, and other noble Lords, I cannot help but feel that this regulation is not the way to deal with such an important and sensitive subject. Even at this late stage, I appeal to the Minister to allow it to be delayed until the autumn, when the full impact assessment and the guidelines are made available. This is not the way to treat Parliament.
This is a challenging issue, and I am very mindful of the opinion of Big Brother Watch, which I respect. It warned that mandatory vaccination is
“crossing … the Rubicon on medical choice, medical confidentiality and bodily autonomy …vital components of the right to privacy.”
Equally, I have been alarmed at the unwillingness of some staff to have the vaccination. In these uncertain times, I accept that action normally considered as unacceptably undermining our personal liberties may have to be taken in the wider interest.
In the end, I come down in favour of the principle of the regulations, but I am dismayed by the way in which the Government have handled them. We have already heard the criticism of the Secondary Legislation Scrutiny Committee. It is an absolute disgrace that the Government have not produced either the operational guidance—even though they say it will be produced within a few days—or the impact assessment, which is required to be submitted to the Regulatory Policy Committee for independent scrutiny and presented to Parliament. Why has this not been done? To expect us to agree to the incursion on personal liberty, in the way that these regulations provide for, is very bad indeed.
My guess is that the Government are very uncomfortable with what a proper RIA would say. Clearly, what has happened is that, once again, the poor old residential care sector has been picked upon and could be devastated as a result of these regulations. The Government are embarrassed by this, and therefore do not want Parliament to know the full facts. If the Minister says it is because officials have been working very hard and are not ready, I just do not believe it. His department has so much form in treating this House with contempt that I am afraid I cannot give it the benefit of the doubt on this. This is a deliberate attempt to hide from Parliament the consequences of a hugely important policy decision. It will not be forgotten. Like the noble Lord, Lord Lansley, I would like an assurance that this will last only for a minimum period of time.
I always work very well with the Registered Nursing Home Association, which says that, at the moment, it does not know how staff will react—how can it? It has been asked to respond to the current draft guidance, and it says that it is very light on, for instance, exactly how the regulator—the CQC—will regulate this regulation. There is an oral statement that the CQC will be proportionate but, as it asks, what does that mean when the requirement is that 100% of staff need to be vaccinated? It also says that the guidance is very light on the issue of what providers and local authorities, as commissioners, should do to support those services that are short of vaccinated staff. Will the Minister give us an assurance that this will be dealt with in the guidance that will be produced in a few days’ time?
The Care Provider Alliance is concerned about the overall impact of losing critical staff. It says that we currently have around 112,000 vacancies. If the Minister is right, and another 40,000 vacancies are added on top of that, how on earth will the sector cope with that? On the point of the noble Lord, Lord Lansley, about the inconsistencies, one must assume that those 40,000 people will find jobs, either in the NHS as care assistants, in the domiciliary care sector or in any of those sectors where they are not required to be vaccinated. How on earth can that be seen as a sensible policy?
I will finish on a completely different subject. I want to raise the case of Christian Scientists. In discussion with the late Lord Weatherill, as a Minister in 2000, I was able to agree a special provision in the Care Standards Act for Christian Scientists. At the time, I said from the Dispatch Box:
“the Government have no intention of preventing or discouraging people from being cared for in accordance with the principles and practices of the Church of Christ, Scientist.”—[Official Report, 28/3/00; col. 740.]
The issue today concerns the two homes that the Christian Scientists run in England. The Church believes that it should be permitted to claim a religious exemption from Covid-19 vaccination. Will the Minister confirm the assurances that I gave to the House from the Dispatch Box 21 years ago? Would his officials meet with the Church to discuss the details?
Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021
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Baroness Thornton (Lab)
My Lords, noble Lords who have read the record of the debate on this SI in Grand Committee will not be surprised that this regret amendment has been brought to the House today, given the Minister’s inability to answer the questions posed by noble Lords or indeed to reassure us over our concerns. Since then, we have had a weekend of further chaos on testing, tracing and isolating, which we will discuss tomorrow when the House takes the latest Statement on the matter. I understand that it is the 49th such Statement; it is certainly the 49th in the Commons.
For complete clarity, as the amendment states, I say that we on these Benches are in favour of guaranteeing and improving the quality of Covid tests. We also recognise that the private sector has a role to play in providing tests for those who wish to travel abroad on holiday and for business purposes. My amendment highlights the issues that were of concern to the Grand Committee and which prompted many questions, based not least on the excellent report from the SLSC, that I am afraid went unanswered.
I thank the Minister for his letter yesterday, which provided much-needed clarity on some of the issues raised and contained the kind of details that would have been helpful in last week’s debate. These regulations are not being introduced with the urgency characteristic of previous points in the pandemic, and they must be introduced and debated in a considered fashion.
This is a public health pandemic and surely no barrier, particularly a financial one, must be put in place that hinders testing and tracing, yet there has been deep unease that lateral flow tests were guaranteed to be free only until the end of July and that people could subsequently be charged under plans being considered by the Government. The Minister’s letter includes welcome confirmation that free NHS tests and universal testing will continue until the end of September. That raises the question of why the Minister could not give us that answer last week in Grand Committee. He should have been well prepared for it given the public interest, media reports and indeed the SLSC report on this instrument, which specifically raised concerns about changing policy and recommended that free testing continue. Can he confirm when that decision was made and when it will next be reviewed?
The noble Lord, Lord Scriven, asked some thoughtful questions about the supply of tests and their reliability. He asked the Minister to explain the Government’s intention on charging for tests, particularly for employers who want to institute testing regimes to bring their staff back into their premises and to protect the public and their customers while doing so. He eloquently made the point that businesses have lost significant revenue over the last week and have asked whether it is right to expect them to meet further costs at this stage. Since April, companies have been able to order rapid lateral flow tests for their workers. While we now know that individuals can still claim free tests through the NHS, at least until the end of September, there seems to be confusion as to whether the scheme for companies has closed. The Government’s website says the cut off for new orders was 19 July—the UK Government’s freedom day in England—as the requirement for masks and social distancing ended. Can the Minister confirm whether the scheme for businesses will also run until September? Does he agree that responsible employers who are ensuring their workers are regularly undertaking lateral flow tests should be congratulated on their approach rather than suddenly being asked to source tests from a private provider, which would dramatically increase costs?
My noble friend Lord Rooker, the noble Lord, Lord Moynihan, and the noble Lord, Lord Lansley, all raised the issue of the missing impact assessment, which the Explanatory Memorandum said would be published in time for the parliamentary debate, which was on Monday 12 July. Again, the Minister failed to answer this question during Committee, but his letter of 19 July reveals that the impact assessment has been red-rated by the independent Regulatory Policy Committee and withheld. Noble Lords will be aware that red-rated impact assessments are deemed not fit for purpose. This is deeply concerning. In his letter, the Minister further committed to publishing the impact assessment as it currently stands and a supporting statement “shortly”, and therefore before the parliamentary vote, following the opinion of the RPC, outlining the areas where further improvements can be made. Here we are, over a week later, about to vote—possibly—yet this important documentation has still not been published. Can the Minister explain why this has not happened, despite his assurance? Where does the buck stop for this latest failing?
Finally, the noble Lord, Lord Scriven, and I are very concerned about the seeming lack of link between test and trace and the proposed new private testing regime. While the noble Lord’s letter to me notes that it is
“vital that we introduce a regulatory regime to ensure COVID-19 tests available on the market are of sufficient quality and produce accurate results”,
it does not offer assurance in detail about how this regime and the NHS Test and Trace will work together to provide a comprehensive safe regime that the UK can depend upon. I sincerely hope that the Minister can provide some much-needed clarity.
There are many matters to regret here: the impact, or lack of it, the policy changes, the process and the timeliness. This was not an urgent matter, the Minister said. It could have been done over a month or so, and it would have definitely benefited from that. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am very glad to support my noble friend in her Motion. I want to put two points to the Minister. The context of this SI is the poor quality of many tests. Paragraph 7.2 of the Explanatory Memorandum makes the point that, during public procurement of lateral flow tests for the NHS,
“only 25% passed through all stages of validation including assessments of performance and quality standards.”
That is a pretty shocking statistic. Can I take it that most of these tests came from China? We had an Oral Question on this from the noble Lord, Lord Alton, only a few minutes ago. That being so, can the Minister assure me that Uighur slave labour in Xinjiang was not used in the manufacture of those tests?
Organ Tourism and Cadavers on Display Bill [HL]
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Lord Hunt of Kings Heath (Lab) [V]
My Lords, it is a great pleasure to speak to my Bill and I thank all noble Lords who are taking part. My interest in tackling the issue of forced organ harvesting in China came about after I was a sponsor of the opt-out organ donation Act, which is now in UK legislation. I took the view that, if we are to ask the UK public to have full confidence in our opt-out system, it was essential that its ethical basis was assured and overseen with rigorous inspection and regulation.
When I first heard about forced organ harvesting in China from the noble Lord, Lord Alton, I was horrified. Organ donation is a precious act of saving a life but forced organ harvesting is commercialised murder and, without doubt, among the worst of crimes. I have spoken against forced organ harvesting many times in the House and I am pleased to say that a great number of my fellow Peers have shown support on this issue.
In January this year, after significant pressure from across the House, my amendment to the Medicines and Medical Devices Bill ensured that the Act was the first piece of UK legislation to fight against forced organ harvesting by ensuring that no medicines in the UK could include human tissues from its victims. This small but significant step in legislative change is only the beginning of the work that we must do here in the UK to prevent complicity in this horrific crime; my hope is that it acts as a precedent for further action, both in the UK and around the world.
The Bill before us today serves to prevent UK citizens from complicity in forced organ harvesting by amending the Human Tissue Act to ensure that UK citizens cannot travel to countries such as China for organ transplantation and to put a stop to the dreadful travelling circus of body exhibitions, which sources deceased bodies from China. I come from Birmingham where, in 2018, an exhibition called “Real Bodies” by Imagine Exhibitions visited the National Exhibition Centre. It consisted of real corpses and body parts that had gone through a process of plastination whereby silicone plastic is injected into the body tissue to create real-life manikins, or plastinated bodies. The exhibit advertised that it
“uses real human specimens that have been respectfully preserved to explore the complex inner workings of the human form in a refreshing and thought-provoking style”.
Dig deeper, however, and it becomes clear that those deceased human bodies and body parts are “unclaimed bodies”, with no identity documents or consent, sourced from Dalian Hoffen Biotech in Dalian, China.
The commercial exploitation of body parts in all its forms is surely unethical and unsavoury. When it is combined with mass killing by an authoritarian state, we cannot stand by and do nothing. In 2019 the China Tribunal, led by Sir Geoffrey Nice, stated:
“The Tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims … Falun Gong practitioners have been one—and probably the main—source of organ supply … In regard to the Uyghurs the Tribunal had evidence of medical testing on a scale that could allow them, amongst other uses, to become an ‘organ bank’.”
We are now hearing further testimonies during the course of the Uyghur Tribunal of the potential forced organ harvesting of Uighurs, including from Sayragul Sauytbay, who testified during the June hearings that she discovered medical files detailing Uighur detainees’ blood types and results of liver tests while she was working at a Uighur camp. Ethan Gutmann, senior research fellow at the Victims of Communism Memorial Foundation, spoke about his recent December 2020 report, including his witness interviews, the human organ “fast lanes” in the Urumqi and Kashgar airports and the construction of vast crematoriums throughout Xinjiang.
China has always denied the claims, brushing them off as rumours, and the World Health Organization has continuously backed this up. The UK Foreign, Commonwealth and Development Office has stated that the WHO shares its view that China was implementing an ethical, voluntary organ transplant system in accordance with international standards, although it has concerns about overall transparency. However, it was revealed by the UK Government in 2019 that the WHO’s assessment is based on China’s own self-assessment. The WHO has not carried out its own assessment of China’s organ transplant system—it does not have an independent expert compliance assessment mechanism in place to carry one out.
Over the years, evidence of forced organ harvesting has continued to build and whistleblowers have stepped forward. The body of evidence is becoming vast, including detailed statistical analysis of transplantations and donations, numerous recorded undercover telephone conversations, legal and policy statements and the practice of the Government and the party, advertisements, admissions of university and military personnel and a large number of very brave personal testimonies.
Last month, 12 United Nations special procedures experts raised the issue of forced organ harvesting with the Chinese Government in response to credible information that Falun Gong practitioners, Uighurs, Tibetans, Muslims and Christians are being killed for their organs in China. In the correspondence, UN human rights experts called on China to
“promptly respond to the allegations of ‘organ harvesting’ and to allow independent monitoring by international human rights mechanisms.”
Their full correspondence to China will be made public shortly.
I have always believed that the UK Government could be a powerful advocate for changing these practices, but also that we should put our own house in order and deal with current gaps in human tissue legislation. Currently, human tissue legislation covers organ transplantation within the UK but does not cover British citizens travelling abroad for transplants, and British taxpayers’ money will pay for antirejection medication regardless of where the organ was sourced or whether it was forcibly harvested from prisoners of conscience. According to NHS Blood and Transplant, between 2010 and July 2020 there were
“29 cases on the UK Transplant Registry of patients being followed up in the UK after receiving a transplant in … China.”
The Human Tissue Act 2004 has strict consent and documentation requirements for human tissue sourced within the UK, but it does not restrict imported human tissue in this way; it is merely advisory.
My Bill aims to amend the Human Tissue Act in five ways. First, it would prohibit a UK citizen from travelling outside the UK and receiving any controlled material for the purpose of organ transplantation when the organ donor or the organ donor’s next of kin had not provided free, informed and specific consent. Secondly, it would prohibit a UK citizen from travelling outside the UK and receiving any controlled material for the purpose of organ transplantation when a living donor or third party receives a financial gain or comparable advantage, or, if from a deceased donor, a third party receives financial gain or comparable advantage.
Thirdly, it would provide for the offences in Section 32 of the Human Tissue Act 2004 to be prohibited even if the offence did not take place in the UK, if the person had a close connection to our country. Fourthly, it would provide for regulations for patient-identifiable records and an annual report on instances of UK citizens receiving transplant procedures outside the UK by NHS Blood and Transplant. Lastly, it would provide for imported bodies on display to have the same consent requirements as those sourced from the UK.
We must take this action internationally and in the UK in order to do all we can to prevent this abhorrent practice. My Bill takes us a step forward. I hope the Minister, who has proved himself to be incredibly helpful in this area, will be sympathetic and say how the Government intend to help to take this forward. I beg to move.
Lord Hunt of Kings Heath (Lab) [V]
I am very pleased to be able to respond to this debate. I thank all noble Lords for taking part and the Minister for his very careful response. We heard from the noble Lords, Lord Ribeiro and Lord Moynihan, how important the ethical basis of organ transplant and use of research in this country is. It sets the context for the debate. The noble Baronesses, Lady Finlay, Lady Brinton and Lady Northover, and the noble Lord, Lord Alton, spoke graphically about the appalling nature of the “Real Bodies” exhibition; the noble Lord, Lord Alton, who has been such a champion of human rights, expressed disappointment about the WHO’s record, which I very much share.
The noble Lord, Lord Sheikh, talked about the vulnerable people who have been targeted globally to provide organs, and I so agree with him. I echo the remarks of the right reverend Prelate the Bishop of St Albans about the appalling tragedy of the Uighurs, and I applaud the role of the Church. The noble Lord, Lord Mackenzie, supported the Bill. The noble Lord, Lord McColl, talked about the balance between the ethical basis of transplants and research in general and the need to encourage innovation, which I agree with.
The noble Baroness, Lady Brinton, brought us back to the point that we need more organ transplants in the UK. The presumed consent measures, as the Minister said, have led to increased donations already but we need to do more. But we must have a system where people are absolutely convinced that consent has been given and where there is integrity in its operations.
My noble friend Lady Thornton, in a powerful speech, spoke about the strength of the case and her scepticism about consent being given in the “Real Bodies” exhibition. I think she is absolutely right on this.
The Minister has always been sympathetic, and I very much applaud him for that. He has expressed some concerns about the details of my Bill, which I will of course reflect on. He argued that there are many provisions already in place, and certainly in relation to exhibitions, the new code published very recently by the HTA states that specific consent is needed when it comes to obtaining a licence. He has also said that he will step up efforts, through round tables and discussions with the relevant agencies, to ensure that the country is doing all it can to prevent these dreadful things happening. I thank him for all of that. I think, though, that there is a strong argument for saying that, at the end of the day, we need explicit legislation. I certainly wish to continue with this Bill and to explore some of the Minister’s detailed comments, perhaps in Committee.
For the moment, I thank all noble Lords who have taken part in what has been a fantastically interesting and important debate. I commend the Bill to the House.