Product Regulation and Metrology Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Committee stage
Monday 25th November 2024 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, the quick answer is that these matters are being considered by Ministers at the moment, but I will feed back to them what noble Lords have raised today.

[Baroness Brinton (LD)]

My Lords—

[Lord Hunt of Kings Heath (Lab)]

I would be glad to give way to the noble Baroness, but as we will come back to her in any case—

[Baroness Brinton (LD)]

I have a question. I am very grateful for the Minister’s response, but he has not yet responded to my final question and, following his reply to the noble Lord, Lord Browne, I need to repeat it to check. I said that this was a probing amendment to clarify the interconnected nature of, and differences between, the UK and EU chemicals industries. Under its current wording, Clause 1(1) says:

“The Secretary of State may … make provision, in relation to”.


Could that be used to amend and update UK REACH to align with EU REACH? I ask this in light of the letter that the noble Lord, Lord Leong, wrote to colleagues on 17 October:

“Though the Bill is not intended to cover REACH specifically, chemicals have not been excluded from its scope … We are currently considering the best approach to chemicals regulation in the UK and will set out priorities”.


That is the fundamental bit of this amendment. We can debate EU REACH and UK REACH, but it is about the influence on this Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the quick response is that we do not envisage it being used in that way because we already have separate legislation to deal with that. I will follow up with a more detailed response, but I do not believe that the provisions would allow that to happen. However, I will double-check and clarify that.

On my noble friend’s point, I have listened to the debate and understand the concerns. I know that Ministers are considering this, and I will ensure that the strong points raised here are put to them as they consider how to take forward this work.

[Baroness Brinton (LD)]

I am grateful to all noble Lords who have spoken in the short debate on this group. I am particularly grateful to the noble Lord, Lord Browne, for covering the 10 restrictions adopted in the EU but not in the UK, since it left the EU. I was debating whether to raise them or not; I am glad that I left them to him. He pointed out the cost-benefits of using REACH. Manufacturers have made it very clear that they want things as simple as possible and, usually, would prefer one form of REACH—the one to which they are likely to export or from which they will have products coming in. I recognise that other Members of the Committee will disagree with that. I am grateful for the comments of the noble Baroness, Lady Lawlor; lemon and lavender sound like a lovely, simple way of looking at it, but cosmetics are much more complicated. We need to be very careful about that. I look forward to hearing from the Minister but, in the meantime, I beg leave to withdraw the amendment.

Health and Social Care Information Centre (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Wednesday 25th January 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, let me say at once that I support the digital transformation of the NHS and the use of information to enhance patient outcomes. I want to see the NHS move faster in a digital world, but it is essential that there are safeguards in place to protect the integrity and confidentiality of patient data. I say that as I look back into the history of NHS data, where we confronted a number of occasions when this did not happen. That is why this is such an important debate. I am grateful to the Minister for the assurances he has already given in his opening speech, and through him I thank his officials for the way in which they have been prepared to engage with us over the past few months, which has been very helpful.

I remain of the view that it was a mistake to bring NHS Digital, or the Health and Social Care Information Centre as it was formerly known, into NHS England, and feel that there are some inevitable tensions and conflicts in so doing. I think the review that led to this overlooked the issue of the integrity of patient information and public confidence when it suggested that the two functions should be brought together. That was legislated for; here we are now, examining some of the details.

The noble Lord has already referred to the Select Committee’s disappointment about the way in which it considered this had been done in a rushed and piecemeal manner. I have no doubt the House will want to take account of the Minister’s response. It is a pity that the full statutory guidance is not available as we debate these regulations. I think, as a matter of principle, it would have been much more sensible if that had occurred.

The core issue is that in the passage of the Bill, and a number of noble Lords who are here took part in that debate, the Government gave assurances that governance arrangements would protect NHS England from marking its own homework, with independent oversight of governance decisions under the new arrangements. The noble Lord, Lord Kamall, the then Minister, said that

“I can assure your Lordships that the proposed transfer of functions from NHS Digital to NHS England would not in any way weaken the safeguards. Indeed, when I spoke to the person responsible in the department, who the noble Lords met, he was very clear that in fact we want to strengthen the safeguards and take them further.”—[Official Report, 5/4/22; cols. 2005-06.]

Having said that, when one comes to look at the arrangements, there are still some questions and doubts that we would like to put forward tonight. I pay tribute to medConfidential, which has raised questions on how some types of data will be handled under the new regime and whether, in pursuit of efficiencies, NHS England’s handling of the data will be less transparent and subject to fewer checks and balances. I think that expresses the issue and the potential tension in a nutshell.

This was reinforced by the comments of the National Data Guardian, to whom I pay tribute for her strong involvement in these matters. In December, Dr Nicola Byrne expressed concern that, in the statutory instrument before us, there is no recognition of the need to have independent oversight. She noted that provisions to obtain independent advice from specialists and experts to advise on and scrutinise NHS England’s exercise of its data functions, which were originally included in a previous draft of the SI, had been removed. She reminded the Government that the commitments to putting the current, non-statutory provisions safeguards regarding oversight into regulations had been made by officials to the House of Commons Science and Technology Committee. I understand from the briefing we received last night that the advice received by the Minister’s officials was that it is not possible, due to the nature of the statutory instrument and the original primary legislation. It is, though, a pity.

In relation to the membership of the Data Advisory Group, the National Data Guardian referred to the arguments put forward by the department for having NHS England representatives on the group present in their capacity as senior individuals with responsibility for data access. I think they are not full members, but they will be present. The department’s argument is that that will support more efficient discussions regarding applications for data access. I can see that, clearly, officials may need to make presentations. I think it is a bit of grey area when they are members, albeit not full members, of the actual group. The National Data Guardian reiterated that moving from a completely independent group to a hybrid model could affect public trust, particularly when advice is given and decisions are made on the internal uses of data.

We need to be clear why NHS Digital had an entirely independent oversight group. It was for very good reasons; it was put in place following the 2014 Partridge review which was conducted due to concerns about the way that patient data had been shared with insurance companies. There was a huge furore at the time. It was interesting that one of the resulting proposals after Partridge was the disbanding of an oversight group which involved staff members for a new independent oversight group. A public consultation in 2015 found support for this change. This is now being reversed. My fear is that something may go wrong with patient data and the department will come back and say, “Actually, we should make this an independent function”.

We have dealt with the issue of timing, and tonight the Minister has given an assurance that the outcome of the internal review into how well the transfer has gone will be made public—that will be very welcome. I will go just one step further and say that I hope the Minister may be prepared to brief parliamentarians on this at the same time.

The noble Lord also answered a question about social care that was asked in our briefing. I think he said there would be a person from a social care field on the group, which is definitely welcome. I suggest that discussions take place with the Local Government Association and the Association of Directors of Adult Social Services to make sure that they are fully involved and supportive of this happening.

So I remain of the view, as I have made clear, that it has been a mistake to bring NHS Digital into the NHS executive. Whatever the structure, one has to build in rigorous safeguards. The key here is the integrity and confidentiality of patient data. It is pretty clear that if the NHS is to be at all sustainable, it has to embrace the digital revolution and it has a long way to go. So I am right behind the Minister in what I know he is personally seeking to do. It is just that if anything that goes wrong with patient confidentiality, the whole thing can fall down. That is why this is so important. I very much look to the noble Lord and NHS England officials to ensure that we recognise that the integrity of personal patient information is important. I beg to move.

[Baroness Brinton (LD)]

My Lords, I echo the thanks of the noble Lord, Lord Hunt of Kings Heath, for the helpful and detailed discussions that the Minister, his predecessors and officials have had with the small group of us who have been worried about this issue, even before the Health and Care Bill started its passage through your Lordships’ House. Although some of us were more expert than others, and I was definitely not one of the expert members of the group, I care greatly about the digital revolution and ensuring that patient data is kept confidential.

The noble Lord, Lord Hunt, said that he supports improving and transforming data in the NHS. That cannot come soon enough. I have said before in this House, and it is still true probably a decade on from when I first said it here, that for my monthly blood tests I have to print out, photocopy and send copies to my hospital consultant because the hospital that I go to and the hospital that processes my blood tests do not use the same data system. That is ridiculous. It needs to change.

It is a real problem, as the noble Lord, Lord Hunt, set out, that the consultation and draft statutory guidance have been rushed through. I want to set that in the same context as that to which he referred, about perhaps going at a slightly slower pace while wanting the revolution to start. That might have been helpful. Omitting organisations such as the BMA from seeing the original statutory guidance raises the question: who else has not seen it? The question is almost impossible to answer. However, the detail of how this is going to work in practice inside the NHS will be the business of all clinical and administrative staff at all levels. It is vital that it works.

The Minister will know that I have repeatedly raised concerns about patient data and how people were not consulted in the two previous patient data and care.data communications. Both had to be held back because there has been outrage from the public that they were not given the chance to understand how their data would be used. Earlier this week, the Mirror reported that Matt Hancock had talked about handing over private patient medical records and the Covid test results of millions of UK residents to US data company Palantir fairly early on in the pandemic. It had offered to hold its data in its Foundry system, clean it and send it back to the NHS. I spoke about this in the Procurement Bill because I am concerned about how data can be kept truly confidential. Regarding the GP data for planning and research, the NHS has already published its federated data platform details, which is called by the Mirror the Palantir procurement prospectus. Perhaps I may ask the Minister, as an example of transparency for the new NHS England digital processes set out, whether organisations such as Palantir that are handling data records will absolutely not be permitted to use that data—even anonymised or deidentified—outside the purposes of the NHS, other than for agreed research being used in what my noble friend Lord Clement-Jones would say, if he were able to be in his place today, was a safe haven, thereby ensuring that that patient data remains completely confidential. The Minister knows, because I have said it before, that the problem is that in the past it has been possible to identify patient data when it was pseudonymised. I want confirmation that deidentifying really means that individuals cannot be tracked down and, most importantly, that the data will not be used elsewhere or sold on.

Water Fluoridation (Consultation) (England) Regulations 2022

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Tuesday 25th October 2022 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, although I do not agree with him; we debated this during the passage of the Health and Care Act through your Lordships’ House only a few months ago. I must declare that I am president of the British Fluoridation Society.

I have form, because I remember when I was secretary of the Edgware/Hendon Community Health Council in the mid-1970s, taking part in an extensive consultation exercise in the London Borough of Barnet when the then Government were encouraging the introduction of fluoridation. We had two very well attended meetings in the borough where there was a clear view in favour of fluoridating water. Unfortunately, virtually no progress has been made since then. That is why I am very glad that the Government have brought forward primary legislation, and I was very glad to hear what the Minister had to say about the intention to move ahead in the north-east. That is very encouraging and I hope that that will be the first of many such schemes.

It seems that the consultation progress that the Government have set out is entirely reasonable. We must remember that the principle is decided—it has been decided by primary legislation. The local consultations that will take place are not a reason for reopening arguments about the effectiveness of fluoridation; they are about the detailed proposals, making sure that the areas are covered correctly and that individuals can have a say about that. However, I have to say that I noted in paragraph 7.3 that in the consultation a higher weight is to be given to individuals affected by the proposals

“who reside or work in the area.”

I am sure that that is right, but I ask the Minister to agree that the highest weight has to be given to the statement by the Chief Medical Officers of all four UK countries last year that water fluoridation is both safe and effective as well as being the most cost-effective way to reduce inequalities in dental caries prevalence. That must be the principle that lies behind any consultation process. I wish these regulations all speed ahead and very much hope that the foundations for a second wave of fluoridation schemes can now be laid in the north-east.

[Baroness Brinton (LD)]

My Lords, I welcome the Minister to consequential SIs from the passage of the Health and Care Act. Some of those present will remember the long debates we had during the passage of that legislation, some of which the noble Lord, Lord Reay, has returned us to today.

I will start on water fluoridation. My points were actually about consultation, and I will return to those, but the noble Lord has a point: there are now scientific records to show that excess levels of fluoride do cause damage. There is a very good academic article entitled “Assessment of fluoride levels during pregnancy and its association with early adverse pregnancy outcomes”. It concludes that this happens mainly in developing countries where the level of fluoride is not managed. I echo the point that the noble Lord, Lord Hunt, just made, that if the four Chief Medical Officers for the four countries of the United Kingdom believe that it is safe, that should be enough for us.

Of course all care must be taken and monitoring must continue, but the other point I want to make is from a dentist in Australia, who was very supportive of Australia’s move to fluoridation a while ago. He said that the region where he lives was one of the last to add fluoride. He talks about the experience of having to give very small children repeated anaesthetics and pain relief, and the effect on them. He says:

“Since fluoridation was introduced to Geelong in 2009, my colleagues are much happier, as severe dental abscesses requiring tricky anaesthetic techniques are much less common, and tend to mainly come from areas in the region which still aren’t fluoridated.”


He goes on to say:

“The other anecdote … was that one of my colleagues who had worked in Europe for a few years went away with 3 children under the age of 6, who were the same age and social demographic as our own children. When they returned … 2 of his 3 children had needed dental treatment”


under general anaesthetic. The key point is that they went to unfluoridated places. Although I hear the concerns of the noble Lord, Lord Reay, I hope we can be reassured that everything we debated during the passage of the Health and Care Bill shows that this is being done very carefully.

During the passage of that Bill, my noble friend Lady Pinnock made a very important series of points about how to decide where to consult about fluoridation of water, given that we have so many reservoirs where water goes in lots of different directions. Often, you cannot identify each of those areas. Although it was good to hear the Minister talk about the way that consultation will happen, and it is good news that there has been broad consultation in the north-east and that there are some resources there, might the Minister comment on how it is possible for civil servants to identify the relevant areas for consultation? This was one of the reasons why we said during the passage of the Bill that there needed to be very broad consultation.

Moving on to the other statutory instrument on training on learning disabilities and autism, and on virginity testing and hymenoplasty, I signed both of those amendments during the Bill’s passage. Each time it came back I spoke to both of them. It was wonderful that the Government listened and accepted the amendments on training for health staff working with people with learning disabilities and autism. I know that this is only a technical amendment to remove the CQC, but this is a moment to thank the Government for listening to the concern of those of us who work with and know many in the learning disabled and the autistic communities, who have often found that they have been treated by people who do not understand their conditions, which makes it that much harder to communicate with them.

I will now move on to virginity testing and hymenoplasty—I welcome the Minister to the language that we have all had to learn. We were very pleased that the Government decided to support measures on this. I have one question for the Minister. He mentioned that this was about the suitability of foster parents or of their household. It is not clear how wide that household is regarded; is it literally the people who live in that house, or, as in other safeguarding issues, would it also include a member of the foster parents’ family who might be visiting that house on a regular basis and who, in any other safeguarding terms, would have to be notified? If the Minister cannot answer that today, I would completely understand, but I look forward to the answer because I have a particular interest in safeguarding. Apart from that, I support all three elements in front of us today.

Schools Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Report stage & Lords Hansard - Part 1
Monday 18th July 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association and it is a pleasure to follow the noble Lord, Lord Lucas. He talked about hair-trigger actions for the school attendance order process. He is right that we need clarity and common sense, an active relationship with parents and a way of holding local authorities to account where things have gone wrong.

Amendments 89, 95 and 96 in this group are in my name. Amendments 89 and 96 echo my amendment in the first group, which my noble friend Lord Storey spoke to. Many Peers have reported specific cases where, despite the Minister saying that this is meant to be about schools and local authorities working together with parents, that is just not happening in practice. Parents are definitely made to feel that they are always in the wrong, so I thank my noble friends Lord Storey and Lord Addington, and the noble Lord, Lord Lucas, and others, for their comments in that group that despite some schools and LAs having very good practice, unfortunately there are some which do not.

Noble Lords know that I have focused on pupils with medical conditions because some of the most concerning incidents relate to schools and local authorities making decisions that fly in the face of the pupil’s doctor. It should not be possible for education people to countermand expert advice. There are other categories, too: a looked-after child, a young carer or even a young offender may all have—in the eyes of the expert, such as their social worker or youth offending officer—a good reason why they should not be in school. Schools should not be able to countermand that.

Other noble Lords have given examples of some of that poor practice, and I cite one example I have heard about: of a paediatric oncology specialist telling a school with cases of an infectious disease—that could be Covid but could also be measles—that a pupil with cancer on strong chemotherapy should not be in school as they were severely immunosuppressed and that if this pupil caught the infectious disease, there was a high risk that it would be fatal. At present, the guidance says that there must be a partnership between parents, schools and health professionals in determining the best route forward. Unfortunately, the school can still choose to ignore that advice.

I thank the Minister for saying on the first day of Report that a headteacher disregarding specific advice would be acting unreasonably and would therefore be in breach of their duty. The problem is that no one knows that—certainly not headteachers or health professionals, and especially not parents or the pupils themselves. I am afraid that the same is true for some local authorities too, which is why these amendments are laid, to ensure that a poor process that starts in a school does not just continue on a conveyor belt. I repeat the point I made at earlier stages of the Bill: the current arrangements do not work. If we especially want to protect children with medical conditions and ensure that they have the same experience as other children, frankly, the arrangements need to be more explicit.

Amendment 95 is a probing amendment about parents who have repeatedly failed to comply with school attendance orders and not paid fines, and who can now—under the Bill—be sentenced to a prison term of up to 51 weeks. The previous maximum level was three months; that is a very large difference and, if used, is likely to lead to the local authority having to provide foster carers or, even more drastically, putting the children in care if a parent or both parents were imprisoned for 51 weeks. Surely, that is the exact opposite of what should be happening. The whole point of this part of the Bill is to encourage children into the stability of education and learning, in which their parents should have a role, and if things have gone wrong then this is a step too far.

I am grateful to the Minister for the meeting last week at which, in light of the debate we had in Committee, we discussed this. She also said in a letter that there was no intention ever to use 51 weeks and that it was a technical provision, solely because that would be the maximum sentence a magistrates’ court can give. This seems extremely strange to me, and slightly worrying. It is wonderful that the current Government say that they would never use it, but what of a future Government? I look forward to hearing the Minister confirm at the Dispatch Box exactly what she said in her letter, so that, should the 51-week term be used, the ministerial intentions when the Bill went through your Lordships’ House could be prayed in aid.

Above all, we need clarity. We need to ensure that this part of the Bill does not act solely as a form of prosecution. Surely, all the good intentions regarding parents who wish to educate their children at home should be understood. Schools and local authorities should really understand when there are genuine reasons why a child may not be in school.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am going to speak to Amendment 97ZA, in the name of the noble Baroness, Lady Hollins. Unfortunately, because of today’s conditions, she is not able to travel to your Lordships’ House.

If the noble Baroness were here, I think she would first say that a lot of progress has been made in how we support those with learning disabilities and autistic people in the last parliamentary Session. The Health and Care Act saw the introduction of mandatory training for all health and social care staff to ensure they are better able to work with people who can otherwise struggle to find a voice within the complex system designed to support them. She would also refer to the Down Syndrome Act, which acknowledges the gaps between the intent of existing legislation such as the Equality Act and the Care Act and its implementation in practice. That is a rationale which underpins the amendment I have signed.

We know that many autistic people and those with learning disabilities can have complex needs across the breadth of the public sector and experience so many barriers to accessing support. What happens in childhood can determine their lifelong trajectory, whether this be in a positive or negative way. For example, for some children and young people this may be the beginning of a downward spiral of school exclusions and admissions to mental health facilities. That is how the journey to long-term segregation in an ATU begins—journeys that the Department of Health and Social Care’s oversight panel chaired by the noble Baroness, Lady Hollins, is currently trying to reverse.

Clause 54, “School attendance policies”, gives little regard to the way that neurodiversity and chronic health conditions can affect a young person’s development and how their educational needs may differ from their peers. This is important because people with learning disabilities and autistic people have higher rates of physical health and mental health comorbidities. This is particularly so for autistic children in mainstream schools.

I am very grateful that the noble Baroness, Lady Barran, wrote to Peers following Second Reading to try to address the concerns of the noble Baroness, Lady McIntosh of Hudnall, that the attendance clauses in the Bill would penalise pupils with SEND and those with autism. In the letter she said:

“We are clear that schools should authorise absence due to both physical and mental illness. Schools should only request parents to provide medical evidence to support absence where they have genuine and reasonable doubt about the authenticity of the illness. We are also clear that schools pressuring a parent to remove their child from the school is a form of off-rolling, which is never acceptable.”


That was very welcome indeed, but as she knows, the words of Ministers do not always turn out to be adopted in practice everywhere throughout the school system.

The importance of this is in the statistics. In 2022, her department stated that persistent absence—defined as missing over 10% of available sessions—involved 12.1% of students; hence the legitimate concern about this, which I understand. However, the rate is nearly three times higher among autistic pupils, at over 30%. Exclusions of autistic children have more than doubled from 2,282 in 2010 to over 5,000 in 2020. There is a big question here: why is it so much higher?

In 2020, Totsika et al published what I think is the only peer-reviewed study into school non-attendance for autistic students in the UK. They found that non-attendance occurred in 43% of their sample of just under 500 students and that autistic children miss 22% of school. Some 32% of absences were attributable to illness and medical appointments, and:

“Truancy was almost non-existent.”


This study found that going to a mainstream school, as opposed to a specialist school, increased the chances of missing school by nearly 100%.

Autistic people experience higher rates of physical and mental health difficulties compared to their neurotypical peers. Anxiety is a predictor of school non-attendance for all children, but we also know that anxiety is more common in autistic children, with approximately 40% having a clinical diagnosis of an anxiety disorder and another 40% experiencing subclinical anxiety symptoms.

The DfE has guidelines around managing non-attendance and support for students with SEND or medical conditions. This includes a duty to ensure suitable education, including alternative provisions or reasonable adjustments and that the local council should

“make sure your child is not without access to education for more than 15 school days”.

However, we know from experience with the Autism Act 2009 and the Down Syndrome Act that, just because it is written in guidance, it does not mean it happens in practice.

The noble Baroness, Lady Hollins, shared with me the example of one parent who wrote:

“My local authority has not accepted medical evidence that my daughter can’t attend school due to severe anxiety... Now we won’t get tuition help and all her further absences will be unauthorised!”


This is despite supporting evidence by a chartered psychologist. She goes on to say:

“Imagine forcing someone with a physical illness to come to school when a doctor says they can’t?”


Another parent has written to us saying that

“Fining parents for school absence due to school-based anxiety is … counterproductive”.


The amendment tabled by the noble Baroness, Lady Hollins, is based not on a few cases but many. It seeks to confirm the Government’s commitment to ensuring that SEND students are not disproportionately penalised by the Bill. There is a duty to implement existing guidance in day-to-day practice. I hope the Government will be sympathetic to the intent of the noble Baroness’s amendment.

Health and Care Bill

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Brinton (LD)[V]]

My Lords, I thank Ministers, officials and other Peers, including my noble friends Lord Clement-Jones and Lady Walmsley, and the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Finlay, for the discussions that we have had since Committee. I am particularly grateful for the letter from the Minister late yesterday and the meeting this morning.

I have laid Amendment 60, and I support Amendment 116, tabled by the noble Lord, Lord Hunt, which try to protect only the lawful disclosure of personal patient data. For the purposes of the debate on this group, can we accept that this is shorthand for the confidential personal and medical data currently mainly held by GPs and hospital doctors in England? Amendment 60 would provide that protection in legislation and was laid only because we have not yet had a clear response from Ministers on what is permitted and what the existing rules will be relation to ICBs taking over responsibilities from CCGs because ICBs are new bodies. This is in the light of new Section 14Z61. At Second Reading and in Committee, noble Lords expressed concerns that this new section, which outlines ICBs’ permitted disclosures of information, looks very wide ranging and could, for example, enable a police officer, or another person from a public body, to demand the disclosure of a patient’s personal data.

The new section uses the phrase that ICBs can disclose data where

“disclosure is necessary or expedient”

for the person making the request, but nowhere does it explain how the decision is made by the ICB or what the decision-making process is to release the data and, importantly, where the protection of that personal data sits in the hierarchy of the request of necessary and expedient demands. I have asked repeatedly how this process would work, and in responses at the Despatch Box, in meetings and in letters I have not really had a response that has laid out simply and clearly how this process would work. I shall therefore ask the Minister the following questions in an attempt to clarify how a patient’s confidential personal data will be protected and what the process would be for it to be released to a person making a request. What rules and guidance are available for staff, including those in ICBs, to manage a request from a non-NHS person requesting information other than through a court order? How would it be processed and reviewed? ICBs would not normally be the holder of such data, and new Section 14Z61 does not set out the balance between the rights of the patient and those of the requestor who believes they have a necessary or expedient reason for being sent this data.

We wish to be confident that the structures are in place for when shared care records come into force. Let me be clear: from these Benches, we welcome the principle of shared care records, but the processes need to be in place to ensure that personal data is protected when every part of NHS England would have access to that data. I raise this particularly because just this week Health Service Journal stated that the Secretary of State is speeding up the shared care records project to be complete and implemented by December 2023.

Can the Minister therefore commit that the powers in Section 14Z61(1) will be constrained such that for requests of disclosure that come from outside the health and care system, the ICB will only ever disclose the direct care providers the requester could ask instead? Can he confirm that if an ICB is to become data controller for shared care records, he will return to this clause with primary legislation on such implementation?

I am very grateful for the discussion with Ministers and officials and hope that the Minister will be able to provide your Lordships’ House with a response that demonstrates that patient, personal and confidential data remains secure. I look forward to his response, and I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I congratulate the noble Baroness, Lady Brinton, on the brevity of her remarks, which is a model for Report stage. I think she put this across very well indeed and I very much support her.

My Amendment 116 relates to the containment in the Health and Social Care Act 2012 of the concept of a safe haven for patient data across health and social care, which is required for national statistics for commissioning, regulatory research purposes and patient care. My Amendment 116 simply seeks to keep those statutory protections in place and ensure that NHS England does not take on this responsibility as a result of the merging of NHS Digital and NHSX within the structure of NHS England, which was a recommendation of the review led by Laura Wade-Gery. The noble Lord, Lord Clement-Jones, is going to speak in some detail—but with brevity as well, I hasten to add.

Kingsley Manning, the former distinguished chair of NHS Digital, has spelled out the implications of doing this. He believes the action of NHS England in taking over NHS Digital

“is a significant retrograde step in defending the rights of citizens with respect to the collection and use of their health data.”

In a letter to me, which I received yesterday, the Minister asked me why NHS England would be regarded as less independent, transparent or objective in the exercise of these functions, given its already significant responsibility for some data and the fact that it is a very similar organisation to NHS Digital, as a statutory arm’s-length body. In answer to him, NHS England has many different responsibilities and priorities, so, first, it will clearly not be able to give the same focus to the issue of protecting the safe haven and, secondly, it has many interests which could be deemed to at least be in tension with the concept of the safe haven. That is why I and other noble Lords believe it is important to have the statutory protection already contained in the current legislative arrangements.

I conclude by saying that I am at one with Ministers in wanting to speed up digital transformation in the NHS; after all, we have been dabbling with this over many years. But it has to be done right, and the way to do it right is to be very transparent and rigorous about the protection of patient information.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Russell of Liverpool, has very ably set out the reasons why this amendment has been tabled, so I will be brief. Let me put it politely: the House will know that a number of us remain concerned that stalking is still not taken seriously by the Home Office, the Government and some parts of the criminal justice system. We know that training remains patchy, and that victims are still told they should be grateful for the attention of their stalker. That is why we tabled this amendment to create a stalking strategy—not for the first time; I have been tabling amendments on a stalking strategy for a decade—for training in recognising, and working in a truly multidisciplinary way to recognise, possible stalking perpetrators, and to let MAPPA professionals become involved at an early stage as soon as the possibility of fixated and obsessive behaviour emerges.

The noble Baroness, Lady Williams, told your Lordships’ House during the passage of the Domestic Abuse Bill, on consideration of Commons’ amendments, that the Government were consulting with different key parties in the criminal justice system to amend the guidance on MAPPA and to recognise and manage stalking. I thank her for sharing the proposed revisions to the statutory guidance. She said:

“Once the revised guidance is settled, we will promulgate it through a Written Ministerial Statement, and this will provide an opportunity to update the House on the delivery of the other commitments I have set out. Noble Lords talked about having some sort of debate in this place, perhaps after the Summer Recess.”—[Official Report, 27/4/21; cols. 2180-81.]


When will this be brought back to your Lordships’ House for such a debate?

The noble Baroness also said:

“We are also legislating already in the Police, Crime, Sentencing and Courts Bill to put beyond doubt the powers of duty to co-operate agencies to share information under MAPPA by clarifying existing information-sharing provisions. We are investing new resources to tackle perpetrators, with an additional £25 million committed this year.”—[Official Report, 27/4/21; col. 2182.]


I understand that that is not just stalking perpetrators but perpetrators of a range of serious crimes.

Despite her encouraging us to bring back stalking-specific matters to this Bill because they were not appropriate for the Domestic Abuse Bill, it is noticeable that there is still no sign of a stalking strategy. It is as if stalking protection orders, now passed, are the magic answer, when actually they are part of the toolkit for managing fixated and obsessive perpetrators who may not come under domestic abuse legislation. As the noble Lord, Lord Russell, demonstrated, the patchy application of SPOs is real evidence of the old problem continuing. The choice about how to apply the stalking laws remains with people inside the police and courts system.

In a case in Wales in the last two weeks, a man was charged with two incidents relating to stalking his ex-partner, but she had already moved home twice and it is evident from the case that this stalking had been going on for a considerable time. Can the Minister say what training is happening within all police forces and all the courts—family as well as criminal—and for social workers, among others involved in MAPPA?

It is 13 years since my stalker was convicted—after 100 incidents had happened—and close to 10 years since stalking was created as a separate offence from harassment, but people being stalked still have to face many issues in the system because there is no overarching strategy for dealing with stalking. It is time that there was.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Baroness, Lady Brinton, has eloquently and bravely described on a number of occasions and brought home to us just how important it is to tackle stalking in an effective way. I also pay tribute to the noble Baroness, Lady Newlove, who has been an inspiration during our discussions on these issues.

I will make just two points to emphasise the excellent speech by the noble Lord, Lord Russell. First, he mentioned the huge number of women who are victims of stalking and the disgracefully low number of prosecutions. The problem is not just the inconsistencies to which he and HM Inspectorate have referred. It is also clear that in too many police forces stalking is seen as a low-level nuisance behaviour issue rather than the serious crime it often is.

We know that a number of stalking perpetrators who potentially pose the highest risk to victims would not meet the threshold for the assessment and management of risk for a relevant domestic abuse or stalking perpetrator, as proposed under the MAPPA model. This is a big problem. As the Suzy Lamplugh Trust, which does so much fantastic work in this area, has identified, stalking is often not recognised as a crime. The level of risk to a victim is therefore inadequately identified and addressed, and this has the potential to put many lives in serious danger.

I refer the Minister to Dr Jane Monckton Smith’s 2017 study of 358 homicides, all of which involved a female victim and a male perpetrator. It revealed stalking behaviour as an antecedent to femicide in 94% of those cases. That demonstrates why it is so important to work on prevention and action in relation to stalking.

The noble Baroness responded at great length to our previous debate in Committee, setting out the proposals and the actions her department is taking. As the noble Lord, Lord Russell, said, in the end they do not really amount to a cohesive strategy that will actually start to take this seriously. I hope the Minister will perhaps agree to reflect on this between now and Report to see whether we can take this any further.

Domestic Abuse Bill

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Campbell, and to support her in her wish to include carers within the scope of the Bill. As she said, this set of amendments would bring the relationship between a disabled person and their carer, whether paid or unpaid, within the definition of “personally connected”.

As the noble Baroness has said, the Joint Committee on the Bill recommended that carers should be included, after receiving significant evidence from the charity Stay Safe about the level of abuse within these highly personal and close relationships. I remain puzzled as to why the Government are not agreeing to do this. As the noble Baroness said, part of the reason is that the Government believe the group covered by these amendments is fully protected by existing legislation, primarily within social care Act safeguarding measures. However, I challenge that. As Stay Safe East has said, disabled women are three times as likely to experience domestic abuse, and four times as likely to report abuse from multiple perpetrators, as non-disabled women. It does not look as though the safeguarding measures are preventing that. Disabled women are also up to three times as likely to experience domestic abuse at the hands of family members, some of whom will also be their carers. We also know that disabled people also experience abuse from paid and unpaid carers or personal assistants.

The noble Baroness has also referred to the opinion from Bindmans LLP. The summary of their opinion is very clear:

“a. The relationship between disabled people and their carers is analogous to the other relationships which fall within the definition of ‘personally connected’ for the purposes of clause 2(1) of the DA Bill.


b. None of the existing legislation identified by Government provides equivalent protection against domestic abuse for disabled people so as to make it unnecessary for the relationship between disabled people and their carers to be brought within the scope of clause 2(1), and thereby the substantive provisions of the DA Bill.


c. Failing to bring the relationship between disabled people and their carers within the scope of clause 2(1), and thereby the substantive provisions of the DA Bill, is likely to result in unlawful discrimination against disabled people contrary to Article 14 European Convention on Human Rights (ECHR)”.


If the Minister is relying on existing legislation and safeguarding measures, I am afraid that the evidence is that this is not sufficient. That is the reason why the noble Baroness has argued so persuasively for this amendment, and I very much hope that she presses it to a Division.

[Baroness Brinton (LD) [V]]

My Lords, I too thank the noble Baroness, Lady Campbell, for tabling these amendments, and am grateful for the earlier work done by the noble Baroness, Lady Grey-Thompson.

I will start by commenting on the relationship between a disabled person and their carer. It is difficult for someone who is not disabled to understand the intimate nature of that care which has to be given, and the relationship which inevitably builds up, whether the carer is paid or unpaid. The language talks about a “lived experience”, which trots glibly off the tongue, but it is not easy. At best, it is a relationship of trust, where the carer supports and enables the person being cared for to live the life that the disabled person wants to live themselves. But there are some cases where the behaviours of the carer are not beneficial, but are controlling, coercive or physically abuse, yet they fall outside the domestic abuse definition. That is why it is so important that the definition of “personally connected” is recognised. It is such a neat solution, and as the noble Baroness, Lady Campbell, has pointed out, it is vital that the definition is similar to the definition in the Serious Crime Act. She is right: they are complementary and will provide consistency and coherence between the Bill and the 2015 Act.

The noble Lord, Lord Hunt, in his excellent speech just now, referred to the excellent work of Stay Safe East. One of the women helped by Stay Safe East said:

“They think just because I’ve got a learning disability, I don’t know it’s wrong to treat me like that. I just want to be safe and live my life.”


Mencap points out that people with learning disabilities can be abused by any type of personal carer, not just in establishments such as Winterbourne View. The problem with private care at home is that often it is not visible at all. That is why these amendments are so important. The Bill needs to understand that the relationship between disabled people and their personal carers is akin to the familial and relationship definitions used elsewhere in domestic abuse legislation.

I hope the Minister will take on board the views of the noble Baroness, Lady Campbell, and the large number of disabled Peers speaking to her amendments, and the wider community of disabled people who need this protection.

Birmingham Commonwealth Games Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 25th February 2020 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I do not want to delay my noble friend’s tour de force but I want to support the noble Lord in what he said about accessibility. My amendment concerns a small bit of accessibility, but a very important one since many visitors will arrive to see the Games via Birmingham New Street station. New Street is a paradox because it is a wonderfully bright building which is very popular and has fantastic facilities, but it is not really a railway station. It is a retail outlet that was placed on top of a railway station, with no increase in the capacity of the station, apart from the four lounges at the top. I do not know what my noble friends think of those lounges, but they are basically deeply unattractive concrete holding pens to stop people cramming down on to the platform. There is no carpet. They are not like an airport. There is not even rubber matting. They are concrete and cold and miserable and do not do the job.

At Second Reading my noble friend Lady Crawley spelled out the confusing nature of the layout. My noble friend Lord Snape is puzzled by platforms A and B, but there is also the name. Is it Birmingham New Street station or is it Grand Central? There are different signs with different descriptions of what I think is the same building. The noble Baroness, Lady Brinton, raised the issue of people with disabilities trying to get through. We go through regularly and see people asking where the taxi rank is. There are two taxi ranks, but they are nowhere near where people leave the station. Both are in the open air because even though the station was designed to have one taxi rank with cover, it was then decided that that was not where you should catch a taxi. If you ask people what they think of the retail outlet—John Lewis and the restaurants—they say it is wonderful; but it is not New Street railway station.

All I am doing is highlighting a real concern that Network Rail needs to get a grip on this and rediscover its role of providing facilities for rail travellers rather than being a retail estate developer, which is essentially what it has become. We need some assurance that the organisers understand this and are going to make it as easy as possible for visitors to find their way to buses, taxis, trams and other facilities. I realise it could be argued that this is a small point concerning an otherwise fantastic Games, but it is actually quite important.

[Baroness Brinton]

I put my name to the amendment in the name of the noble Lord, Lord Moynihan, and I will come back to that in a minute. I just want to pick up the points made by the noble Lord, Lord Hunt. I want to refer again to the meeting I had with two people from the organising committee who were extraordinarily helpful. Emma Clueit, in particular, was knowledgeable and more than helpful—she tried to explain things. I thought she could influence what was going to happen, so it was an entirely positive conversation.

However, there is a “but” coming. The “but” on transport is that she was saying that they had just been invited to have somebody on the transport forum. However, that is only one voice on a much wider forum. I have sat on those regional or subregional forums, and my worry about Birmingham New Street is the ability of one body to change something is much more limited than if you have a longer-term base.

The other issue is that change is required very quickly. I did not even know that there were two taxi ranks at Birmingham New Street when I relayed my problems with one of them at Second Reading. I find that quite amusing. There are going to be major issues with the large numbers of people coming through for the Games that will need to be dealt with as a matter of urgency. That will be a legacy for Birmingham if it is handled right.

I want now to move back to Amendment 8 on having a statement of accessibility in the Bill. I completely agree with the noble Lord, Lord Moynihan, that it is essential. To refer again to the conversation that I had with Miss Clueit and her colleague, the Games team have slight concerns about the IPC standards being used because sometimes they want to better them. I have complete sympathy with that, but that is not what the amendment says. It says that the standards must be satisfied. In other words, it is a floor of accessibility, not a cap.

I think there is a very good reason for having it, for just the reason I have said, on transport. We need to ensure that Games committees have real power in the communities in which they are working to make changes happen. Having something in the Bill will make the other statutory bodies in the area have to face up to their responsibilities as well. I hope that the Minister will be prepared to put it in the Bill because some of the problems outlined during Committee stage today demonstrate that, while the organising committee has the best of intentions, its ability to deliver everything that the wider community wants is harder without the power of something being in the Bill.

I said I would go very briefly back to the issue of accommodation for athletes. I was rather disappointed with the letter I got from the leader of Birmingham Council. There are two forms of category 3 for living accommodation for wheelchair users. He said:

“Category 3 is generally around the provision of equipment specific to user”.


No, it is not. My worry is that the council is providing the planning permission for these units and the advice that Councillor Ward has got from his officers does not even understand the basics that Paralympic athletes will need. I remain extremely concerned about that. I hope that perhaps I can have an update letter from Birmingham City Council to reassure me. My letter made no indication at all that there was any accommodation for category 3. I know that that is not true because of the conversations I have had with Miss Clueit and I have also seen the Birmingham Mail report on the number of units that will require extra care in the future. It is 161 units and I suspect they are the wheelchair-user ones.

There is no joined-up thinking on this and that is exactly why accessibility needs to be in the Bill to make sure things do not drift and fall through the net.

Medicines and Medical Devices Safety Review

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Thursday 22nd February 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the Minister for repeating the Statement. I should also like to thank him personally for meeting representatives from the mesh campaign group two weeks ago, which is much appreciated.

Today’s announcement is an acknowledgement that there are major issues which go back decades in areas that concern safety and a lack of proper scrutiny and research. We have heard how mesh implants have left women in permanent pain, unable to walk and unable to work. Welcome as the Statement is, the Government need to do much more to support those affected. Mesh has been suspended in Scotland and banned in other countries. The most recent interventional procedure advice from NICE on prolapses states that it should be used only for research purposes and not as a front-line treatment, but I ask the Minister whether he thinks we need to go further and suspend the use of mesh until NICE has completed its review into the safety and efficacy of the product. If the Government are not prepared to go as far as suspension, will he at least write to all trusts and indeed private hospitals to remind them that the Health and Social Care Act 2015 requires them not to cause avoidable harm? The review in itself signals that mesh is now acknowledged to cause harm.

I refer the Minister to Owen Smith’s comments in the other place; he chairs the All-Party Group on Surgical Mesh Implants. He said that:

“Lessons must be learned from the awful complications many women have experienced since undergoing mesh surgery and proper processes must be put in place to stop this happening in the future … The mesh scandal shows what can go wrong when devices are aggressively marketed to doctors and then used in patients for whom they were unsuited or unnecessary”.


Will the review chaired by the noble Baroness, Lady Cumberlege, look into that particular aspect?

The Minister mentioned in the Statement the investment of £1.1 million, part of which will go to improving clinical practice. Clearly, one should always seek to improve clinical practice, but mesh campaigners would say that the real issue is not the clinical practice but the product itself, which is not fit for purpose.

The retrospective audit is very welcome indeed, but there is a real question about whether it will capture all the women affected. I have certainly received evidence to suggest that some women suffering greatly from mesh implants are not aware of the reasons and therefore do not approach the health service. Will the Minister also say whether the mesh audit concerns only hospital statistics and records or whether it will cover GPs and primary care as well? Also, will the review extend to when men and women are affected by hernia mesh?

The Secretary of State has said that the review will not go into the science of mesh. But most studies do not use quality-of-life questionnaires, so they do not pick up the devastation of pain, lost sex lives or constant urinary infections. Studies concentrate on whether the mesh has cured the problem of prolapse or incontinence. Many studies are short-term or compare mesh to mesh. Trials should compare mesh to the old-fashioned natural tissue repair to get a proper evaluation of whether the use of these products should be continued in the future. Many trials have low numbers and any woman who has had a mesh implant can feel like a ticking time bomb, as the product can shrink or twist years down the line. No amount of surgeon training can counteract that.

Will the review extend to those with mesh bowel prolapses? Will it also look at what help the NHS needs to give to people currently affected as mesh sufferers? Obviously each country in the UK is taking a slightly different approach but, in his role as the Minister responsible, will he work with Scotland, Wales and Northern Ireland to pull together research and co-ordinated action, which would make great sense?

I hope that the noble Baroness, Lady Cumberlege, will be asked to look at whether device regulation needs to be tightened up. As the Minister knows, it is much less stringent than medicines regulation and there has been an ongoing debate about that. I hope that that will be included within her review.

On Primodos, the Minister indicated that the department would drive forward and accept the recommendations of the expert working group. But in the other place when the report was published in October, it was met with concern from all sides of the House. I hope that he will take that into account.

I am grateful that the Secretary of State has included sodium valproate in this work. The Minister will know that last year a charity found that almost one-fifth of women taking the drug still did not know the risks that this medicine could pose during pregnancy. I therefore welcome government efforts to raise awareness of the dangers of valproate. I also hope that the House can be offered an assurance that the review will gain access to medicine regulation files held in national archives, access to any valuable evidence cited in unsuccessful legal actions and access to documents and information held by pharmaceutical companies, and that all such material will be made public.

I ask the Minister to invite the noble Baroness, Lady Cumberlege, to meet victims to see whether consensus can be agreed on the terms of reference, to maintain trust and confidence in it. That would be a very valuable first step to gaining the confidence of campaigners who have worked so hard and have been gratefully acknowledged by the Secretary of State in his Statement.

[Baroness Brinton (LD)]

From the Liberal Democrat Benches, I am very grateful and thank the Minister for the Statement. I am particularly pleased about its tone, which moves on the Government’s debate with campaigners, families and clinicians about these very serious issues. It makes a break with the past.

I am particularly concerned that there should be regular assessments and updates for people with problems from Primodos and sodium valproate, because we know from our experience with thalidomide that everybody thought that everything had been sorted from the initial diagnosis of the children, but as they entered adulthood and more mature years further medical issues appeared. It will be important to recognise that we need to make sure these young people—and adults as they are now—get that protection.

The yellow card system was not available in its current format for these two drugs. One of the things that concerns me most about the Statement is the assumption that the only people involved with the yellow card are clinicians. Speaking as a patient who has been on a drug that has very serious yellow card incidents, I have been trained to recognise that if I get a side-effect I do not just go back to my hospital; I report it to the pharma company. The pharma companies are notable by their absence in this Statement. Will there be specific links back for clinicians and patients on some of the side-effects of drugs? That is easy to say for those who are formally expert patients. I absolutely accept the point made by the noble Lord, Lord Hunt, that some patients are inexpert for all the right reasons.

There needs to be a real focus on all the other health professionals that these patients come into contact with. Reporting a yellow card incident to a GP when it is very difficult to see your own GP these days means that it could quite often be missed. In the case of sodium valproate this certainly needs to include midwives and people involved in the obs and gynae departments as well. What training is to be provided for these non-specialist healthcare people to make sure that they understand, when a patient talks about a problem, that this may need to trigger a yellow card response? To that end, I welcome the proposal for an electronic yellow card. That will be extremely helpful. Printing out a yellow card, filling it in and sending it in is an absolute deterrent to it happening.

On Primodos and sodium valproate, will the longer-term effects also be covered by the Cumberlege review? It is important to have a reference back there. I am also concerned about the vaginal mesh issues, specifically those reported in the Statement. It would be useful to know what percentage of those who have had vaginal mesh implants have faced problems. It is fine to say that many have benefited. I completely accept that, but one needs to understand what the ratio is between those facing problems and those for whom it has benefited them, to understand whether a ban should be in place. What is the date for publishing the retrospective audit? It is fine to say that it will be done. I have no idea how far along the line the process is. Then there is the timescale for creating that computer database for vaginal mesh to improve clinical practice. When will it be not just commissioned, but completed and used in analysis? Will interim reports go to the noble Baroness, Lady Cumberlege, by the people doing this review if evidence emerges that she will need to take account of?

I am concerned about the idea of the creation of a patients’ champion. We already have panels and expert groups. Yet another person that patients may or may not know about, and may or may not be able to turn to, seems problematic. I urge the noble Baroness, Lady Cumberlege, to look at what is available now rather than creating yet another body.

Finally, I echo the concerns expressed by the noble Lord, Lord Hunt, about whether we should move to a public inquiry at this stage. I wonder whether the evidence that the noble Baroness, Lady Cumberlege, will undoubtedly turn up means that she may come back to Ministers and say, “Actually, this is the point at which this needs to go public”. Campaigners have highlighted for years that there are problems.

Legislative Reform (Clinical Commissioning Groups) Order 2014

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Tuesday 24th June 2014 Grand Committee

[Baroness Brinton (LD)]

My Lords, the NHS Act 2006 started us down the route of commissioning; obviously, with the updating and creating of clinical commissioning groups under the Health and Social Care Act 2012, we are still moving into fairly new territory. Inevitably, CCGs are feeling their way in the new structures, including joint working. I am pleased that the order will now legislate more formally for CCGs to work closely with each other and with NHS England, and to jointly commission where appropriate.

One of the many reports that come back to your Lordships’ House from CCGs and NHS trusts is the desire to gold-plate any system with legal advice. For example, we know that the Health and Social Care Act enabled tenders to be taken for quality and efficacy, not just on cost, as under the 2006 Act, yet we hear time and again that lawyers tell commissioners that cost is the most important point. I also welcome the issues around CCGs and National Health Service England overlapping. The Minister referred to some of those; it is also important where there is a pathway in rare diseases, where there may also be some linkages with CCGs perhaps implementing at a lower level. That will smooth the way for that to work well.

To this non-lawyer at least it seems extraordinary that CCGs could not form joint committees to commission over boundaries. This draft order now makes it crystal clear that joint commissioning and the arrangements for ratification by the separate CCGs are not just acceptable but welcome. It is encouraging to see in the accompanying notes that the consultees to this order also see it as a cost-efficient measure; I add to that smoother working systems and, most importantly, joined-up services for users of the NHS.

[Lord Hunt of Kings Heath (Lab)]

My Lords, on the face of it the order is unexceptional, although I agree with the noble Baroness that CCGs have got themselves into a ludicrous state of getting legal advice on almost everything. It is patently obvious that there are ways in which they can come together to make decisions. We also see that as regards tendering, where, despite the commitments the noble Earl made, we see CCGs absolutely panic-stricken about making a decision not to tender out services. If ever one wanted evidence of the foolishness of the arrangements we now have, it would be the kind of reaction we are seeing from CCGs.

I will ask two or three questions on the order. I noted in paragraph 4.6 of the consultation paper that the department points out that there was opposition to the proposal to enable CCGs and NHS England to form joint committees. I understand that while it is mainly about CCGs forming joint committees, they can also form a joint committee with NHS England. The necessary protection is laid out in paragraph 3.6 of the paper we received, which says that:

“The Minister considers that the proposals maintain the necessary protections. CCGs enjoy a degree of autonomy”.

I thought that they were going to be autonomous, but there we go; it has been qualified in that document. The paragraph goes on:

“To this end, NHS England is under a duty … to promote the autonomy of persons exercising functions in relation to the health service. The wording of the proposed amendment to section 14Z9 is designed to ensure that a CCG function can only be jointly exercised with NHS England where both parties are in agreement, thus preserving a CCG’s autonomy”.

I put the point to the noble Earl that if you talk to CCGs, they do not feel autonomous, because they are used to being beaten up by NHS England—receiving incessant phone calls from the local offices of NHS England—and they and the accountable officer find themselves under huge pressure when there are problems with the system. Therefore the idea that there is an equal partnership between NHS England and the CCG as regards a joint committee is simply not believable. Clearly, local area teams will use that mechanism to force CCGs into joint committees and then force decisions through. I would have thought that that is patently obvious from what is happening in the field in the National Health Service. I would be grateful to hear the noble Earl’s comment on that.

Of course, I have no problem about CCGs working together so that we can get rid of some of the current fragmentation. If we take my own patch of Birmingham, where three and a half CCGs cover the city, there is no chance, it seems, of actually having a strategy for the city which can embrace all the trusts and commissioners unless it is done jointly. I would like to hear from the noble Earl how in fact this mechanism is going to be used to encourage CCGs, which are patently too small in many areas, to come together so that we get some decent strategic planning instead of the fragmented and inadequate contracting process that so many CCGs are undertaking at the moment.

I would also like to ask the noble Earl about consultation when decisions are made by a joint committee. I assume that the consultation rights and responsibilities would apply to a joint committee as much as they do to an individual CCG but, as there is scant evidence of CCGs undertaking proper consultations, I suppose that that is not much comfort. It would be good to hear a little more about how CCGs are going to work this. I must say that after two years of this wonderful new system, I am still waiting for a letter from my CCG saying that it actually feels some form of accountability to me as an individual, but alas that letter has yet to come. From the legal cases which have been brought against some CCGs, it is clear that they do not have any sense of accountability to their local population. That is not surprising because they are membership organisations. They are owned by GP practices, which are the members of the organisation.

This morning I listened to Simon Stevens, appearing before the Public Administration Select Committee, talk about the proposal to hand over some of the contractual responsibilities of NHS England to CCGs. So, in effect, not only are the CCGs membership organisations, they are now going to be given co-power with NHS England to contract with the individual members of the organisations in relation to primary care services. I can well understand why the local area teams do not have the capability to manage the primary care contract. It was patently obvious that they were not going to do so. But what it comes back to is that the governance of CCGs is hopelessly compromised. They ought to be public bodies with much greater lay representation. If they were, we would have much more confidence in the arrangements, but they are not. They are dominated by contractors who have a vested interest in the decisions made by those clinical commissioning groups.

Finally, I turn to page 3 of the impact assessment that provides the evidence base for the supporting paper. It is implied that decisions to deal with specific funding requests might be dealt with by a joint committee. That, of course, is a euphemism for rationing services. Again, we know that some CCGs are making highly dubious decisions about restricting patient services to which NHS patients are entitled. I would like some reassurance that if the joint committee is going to do this, it will be done in public, not behind closed doors, and after full consultation. Recently I have been particularly concerned about evidence which shows that NICE technology appraisals are not being fully implemented in the National Health Service. I remind the noble Earl that it is a legal requirement for a NICE technology appraisal to be fully implemented by the NHS. Again, I would like to hear what the Government are going to do to ensure that CCGs actually play fair by the public and do not unnecessarily restrict treatments.

The order itself is unexceptional and it is supported, but I have to say that the performance of some CCGs leaves a lot to be desired. It is because of the potential of the joint committees to make major decisions that I raise some concerns today.

Contracting Out (Local Authorities Social Services Functions) (England) Order 2014

Debate between Lord Hunt of Kings Heath and Baroness Brinton

Tuesday 11th March 2014 Grand Committee

[Baroness Brinton (LD)]

My Lords, it is encouraging that the results from the social work practices pilots are very positive. Phrases like “innovative”, “flexible” and “less bureaucratic” are very important to begin to change the culture in the way people work. It is also as important that the real personalisation of services is balanced by the job satisfaction of staff.

The Explanatory Notes that accompany the order are almost entirely positive. I picked up a slight nuance in the Minister’s comments. I wonder if there were any identifiable less positive or concerning features about which it might also be worth advising local authorities in how they are going to be commissioning work in the future. Apart from that, it is inevitably unfortunate that there is a short notice period that this is intended to cover, before the Care Bill comes in. At least there will not be a gap now, which is to be praised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I should have declared on the previous order—and do on this order—my chairmanship of the Heart of England NHS Foundation Trust and that I am president of GS1 and a consultant and trainer with Cumberlege Connections. I am happy to support this order. I think it is the third time the noble Earl has been before the Committee to present such an order and, as I understand it, it is an interim measure until the Care Bill is enacted; the noble Earl has said that that is expected to be on 1 April 2015.

To pick up the point raised by the noble Baroness, Lady Brinton, I suppose it would have been helpful if we could have seen the draft of the final evaluation report at this point—it is now not going to be published until April. The noble Earl referred to some of the main findings of the draft final evaluation report from King’s College. He said that it was mainly positive although there were clearly some issues, which are identified in paragraph 7.6. Perhaps he might like to say a little more about that.

Perhaps I could also ask the noble Earl about right to control. This was considered in the previous order, and in this order a reference is made to the fact that decisions on the future of the right to control pilot scheme have yet to be made and hence no provisions are included in the new order in this regard. When we debated this on 20 November 2012, the noble Earl referred to the interim evaluation of the right to control programme, published in February 2012, which showed that disabled people were benefiting but there simply was not enough evidence to make a decision on a wider rollout. He went on to say:

“Clearly, an extension of the kind that we seek will give us more evidence. The early signs are positive but that does not provide the basis for a robust decision on permanent arrangements”.—[Official Report, 20/11/2012; col. GC 150.]

Has the department now given this further consideration? Can the noble Earl say why no decisions on the future of right to control have yet been made and when he thinks such decisions will be made?